Manufactured Home Is Not “Motor Vehicle” So Cram Down Of Secured Loan In Chapter 13 Plan Is Not Prohibited By Hanging Paragraph of §1325(a)

By Scott Riddle Posted in Consumer Bankruptcy Guide, Middle District Cases

In re Thomas, Ch. 13 Case No. 24-10535-RMM, 2025 WL 1373615 (Bankr. M.D. Ga. May 12, 2025). Debtors’ Chapter 13 Plan proposed to reduce the secured creditor’s claim to the value of the manufactured home that served as collateral. The sole legal issue was whether a manufactured home that was Debtors’ residence was a “motor vehicle” for purposes of the hanging paragraph of 11 U.S.C. §1325(a). Debtors had obtained the loan less than 910 days before the filing of the Bankruptcy petition.

The Lender argued that the home was a motor vehicle and, therefore, the Debtors could not cram down the loan. The Court disagreed. “The definition of motor vehicle has two distinct parts: it is a vehicle that is both (1) ‘driven or drawn by mechanical power’ and (2) ‘manufactured primarily for use on public streets, roads, and highways.’” See 49 USC §30102(a)(7). A manufactured home does not fall within this definition based on the plain language of this statute. This conclusion was also consistent with all relevant persuasive authority. The National Highway Transportation Safety Administration has also excluded manufactured homes from the definition of motor vehicles for at least 50 years. See, e.g., NHTSA Interpretation Letter to Constance Newman (Mar. 17, 1976), 1976 WL 533912, also available at https://www.nhtsa.gov/interpretations/aiam2279).

The Lender’s objection to the Chapter 13 Plan was, therefore, overruled.

Scott Riddle’s practice focuses on bankruptcy and reorganization. Scott has represented businesses and other parties in Bankruptcy cases for over 20 years. You can contact Scott at 404-815-0164 or scott@scottriddlelaw.com. For more information, click here.

11th Circuit – Damages for False Imprisonment are Nondischargeable as Willful and Malicious Injury

By Scott Riddle Posted in Eleventh Circuit Cases, Northern District Cases

In Watson v. Bradsher and Ali, 2025 WL 2205853 (11th Cir. August 4, 2025), the Debtor met Plaintiffs at a bar and invited one of them to go home with him. She sternly rejected his advances and moved with her friend to another part of the bar. Debtor tried to pay his tab and could not find his wallet, and accused Plaintiffs of stealing it. “He admitted that he had not seen [Plaintiff] take his wallet but insisted that ‘th[o]se bitches got my wallet.’ He repeatedly demanded [Plaintiffs] arrest and threatened to have the bar shut down if the officers did not comply…. The next day, Watson found his wallet in his car.” Debtor’s accusations caused the police to detain the Plaintiffs.

[Plaintiffs] sued [Debtor] in state court for slander per se, false imprisonment, and battery. A jury returned a general verdict for [Plaintiffs]. The jury awarded [Plaintiff Bradsher] compensatory damages of $75,000 and punitive damages of $5,000. It awarded [Ali] compensatory damages of $25,000 and punitive damages of $5,000. The court also awarded the women $39,000 in attorney’s fees and $1,500 in expenses.

Debtor filed a Chapter 7 petition and Plaintiffs filed a proceeding to except the judgment debt from his discharge pursuant to 11 U.S.C. §523(a)(6). After a trial, Judge Ellis-Monro “ruled that the judgment debts for slander and false imprisonment were nondischargeable but that the judgment debt owed to Ali for battery was dischargeable. [She] found that Watson did not intend to make physical contact with Ali when he poked her forehead, so the injury could not have been “willful.” And [she] attributed $2,500 of Ali’s judgment to the debt for battery.”

Real Property Owned By Dissolved LLC Was Not Property Of Individual Member’s Bankruptcy Estate

By Scott Riddle Posted in Northern District Cases

In In re Kimball, Ch. 7 Case No. 24-11036-pmb, 667 B.R. 487 (Bankr. N.D. Ga. 2025) (click here for pdf) , the Lender foreclosed on commercial property owned by a limited liability company on August 6, 2024. The LLC, in turn, was owned by an individual Debtor who had filed a Chapter 13 case on August 4, 2024, two days before the foreclosure sale. The dispute centered on the fact that the LLC had been administratively dissolved by the Georgia Secretary of State in October 2022 and was still administratively dissolved on the date the Order was entered. Debtor argued that because the LLC was administratively dissolved, the real property became part of the Debtor’s Bankruptcy estate and the foreclosure sale was stayed.

The question posed by this case is easy to state. Does the sole owner of an administratively dissolved Georgia limited liability company have an interest in real property that was at all times titled in the name of the limited liability company that is sufficient to render the real property “property of the estate” under Section 541 of the Bankruptcy Code such that the property cannot be foreclosed upon after the owner files for bankruptcy without violating the automatic stay of Section 362(a) of the Bankruptcy Code? The answer, although requiring a bit of explanation, is similarly easy to state. No, he does not.

Judge Basier noted that Georgia law expressly provides that “[a] limited liability company administratively dissolved continues its existence…” O.C.G.A § 14-11-603(b)(3).

[T]he remainder of O.C.G.A § 14-11-603 makes clear the “administrative dissolution” is a temporary state that is intended to be resolved by the dissolved entity curing the matters that led to its dissolution.6 This is apparent because the limited liability company is given five (5) years to seek “reinstatement,” O.C.G.A § 14-11-603(b)(4), and during that lengthy period its exclusive right to use its name is maintained notwithstanding its purported “dissolution.” O.C.G.A § 14-11-603(b)(6). It is further apparent because, in cases where reinstatement occurs, the limited liability company is treated “as if the administrative dissolution has never occurred.” O.C.G.A. § 14-11-603(b)(4). Based on the foregoing, it is simply incorrect to say that the LLC “no longer exists,” such that it could no longer be the owner of the Property.

A member in an LLC has no interest in specific LLC property, O.C.G.A. § 14-11-501(a), and the administrative dissolution of the LLC did not create any new rights of a member. Further, “[n]o evidence was presented that the Debtor took any action during the almost two (2) years he claims that the LLC did not exist to transfer record title to the Property to himself, which would have required the execution of a deed by the LLC in his favor and the recordation of that deed in the real property records. None of that was done. Instead, the Debtor continued to treat the LLC as if it existed and owned the Property.”

The Court concluded that the Debtor did not have an interest in the real property, and the property was not property of the Bankruptcy estate. Therefore, the foreclosure sale was not stayed by Section 362.

Judge Coleman – Vehicle Cannot Be Exempted as Tool of Trade

By Scott Riddle Posted in Consumer Bankruptcy Guide, Northern District Cases

In In re Cady, Ch. 7 No. 24-41026-ejc, 2025 WL 1587266 (Bankr. S.D. Ga. June 4, 2025) the issue was whether the Debtor, a real estate agent, could claim an exemption in her vehicle as a tool of the trade. In addition to claiming vehicle and wild card exemptions, Debtor argued that her vehicle was integral to her occupation and, therefore, qualified for an additional exemption pursuant to O.C.G.A. §44-13-100(a)(7). This subsection allows a debtor to exempt:

(7) The debtor’s aggregate interest, not to exceed $1,500.00 in value, in any implements, professional books, or tools of the trade of the debtor or the trade of a dependent of the debtor.

Judge Coleman noted that there was a split of authority in Georgia Bankruptcy Courts. In Curry v. Dial Fin. Corp. (Matter of Curry), 18 B.R. 358 (Bankr. N.D. Ga. 1982), Judge Kahn held that a vehicle could never be a tool of the trade as the Georgia exemption statute “contemplates that the [debtor] uses the tool with his hands, and that the [debtor’s] work requires some degree of manual skill.” Judge Bihary followed this reasoning in Conerton v. Wachovia Bank (In re Conerton), No. 03-62155, 2004 WL 5846767 (Bankr. N.D. Ga. Jan. 13, 2004) (Bihary, J.) See also Mitchell v. First Franklin Fin. Corp. (In re Mitchell), No. 17-68428-PMB, 2018 WL 1442256 (Bankr. N.D. Ga. March 21, 2018) (Baisier, J.) (vehicle is incidental to, but not an integral part of, debtor’s work as a law clerk who travels to meet clients). Other Courts have allowed the exemption under certain circumstances. Schneider v. Fidelity Nat’l Bank, 37 B.R. 747 (Bankr. N.D. Ga 1984) (Norton, J.) (allowing an exemption for a traveling salesman when travel was the essence of his occupation).

The Judge reviewed the statutory text and definitions of “tools” and “trade,” but did not find them dispositive. He then reviewed the exemption statute as a whole, finding it “noteworthy that the Georgia exemption statute has separate exemptions for motor vehicles (O.C.G.A. § 44-13-100(a) (3)) and for tools of the trade (O.C.G.A. § 44-13-100(a)(7)).” Finding that was also not dispositive, the Court reviewed, in detail, the history of the exemption. Ultimately, Judge Coleman agreed with Judge Kahn’s reasoning in Curry.

[I]n Georgia a tool of the trade is an implement used by a person in that person’s work. Tools of the trade may be far more sophisticated today than they were when the Supreme Court of Georgia considered the question, but the term still contemplates that the person uses the tool with his hands, and that the person’s work requires some degree of manual skill.

This interpretation is only bolstered by the statute’s grouping of tools of the trade with implements and professional books, by the separate motor vehicle exemption, and by the relatively low dollar amount of the tools-of-the-trade exemption. Bringing together these disparate threads, the Court finds that the Debtor cannot exempt her BMW as a tool of her trade as a realtor under O.C.G.A. § 44-13-100(a)(7).

Thus, at least in the Southern District in Judge Coleman’s Court, a debtor cannot claim an exemption in a vehicle as a tool of the trade.

Homestead Exemption: Double Exemption Available Where Debtor Does Not Have Sole Ownership Of Residence

By Scott Riddle Posted in Georgia State Cases, Middle District Cases, Northern District Cases, Southern District Cases

In In re Antman, 2024 WL 4786241, Ch. 13 Case No. 23-60317-ejc (Bankr. S.D. Ga. Nov. 14, 2024), the debtor’s father died in 1996 and in his will left his house to debtor and her three siblings in equal shares. Debtor and her husband had lived in the house since 1999. Debtor filed a Chapter 13 case in 2023 and claimed a $43,000 homestead exemption (the “double exemption”) in the house pursuant to OCGA §44-13-100(a)(1). The Trustee objected to the exemption, arguing that she was only entitled to the $21,500 exemption because she only held a partial ownership interest in the house.

Section 44-13-100(a)(1) provides that a debtor may exempt: “(1) The debtor’s aggregate interest, not to exceed $21,500.00 in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor. In the event title to property used for the exemption provided under this paragraph is in one of two spouses who is a debtor, the amount of the exemption hereunder shall be $43,000.00.”

The Trustee’s objection hinged on the argument that the title to the house was not in “one of two spouses who is a debtor;” rather, the debtor only owned a fractional interest with her siblings.

Here, the Debtor has claimed a $43,000.00 double exemption in the real property devised to her, and to her three siblings, by their late father. The Trustee does not dispute that the Debtor uses the property as her residence. Nor does he dispute that the Debtor is entitled to a $21,500.00 homestead exemption. Instead, the Trustee makes essentially two arguments. First, he argues that the plain language of the Georgia exemption statute prevents the Debtor from claiming the double exemption because she has only a partial ownership interest in the residence. Second, he argues that the purpose of the double exemption statute—which, he says, is to protect a debtor’s non-filing spouse’s equitable interest in a residence—is not implicated here because the Debtor’s husband has no equitable interest to protect… Thus, the question before the Court is whether O.C.G.A. §44-13-100(a)(1) requires sole ownership of the homestead or permits a debtor with only a partial interest to claim the double exemption.

Judge Coleman disagreed with the Trustee and held that the statute did not require that the property be titled solely in a debtor’s name to trigger the double exemption.

Don’t Pay Fact Witnesses (With a Surprising Bankruptcy Twist)

By Scott Riddle Posted in Corporate & Fiduciary Litigation, Miscellaneous Cases, News and Comments

I am straying off the strict topic of Bankruptcy law and into an area of general litigation and attorney ethics that has come up in one of my pending cases. When it is OK for a lawyer to pay, or offer to pay, a witness in a pending case? The common sense answer that probably comes to mind immediately is “never.” Then we might consider some exceptions for witness fees and expenses that may be required by applicable law and expert fees and expenses. Other payments are far more questionable. Read until the end of this long-winded post for a very common Bankruptcy scenario that may surprisingly run afoul of the ethical rules and federal criminal law.

In my case, we are litigating against a law firm and their client in Bankruptcy Court. The law firm is also acting as counsel in the litigation, thus making them lawyers, parties and witnesses for themselves and their client. The law firm also has an agreement with their client to pay any award of damages or sanctions that may be assessed against him in the case. Thus, they have an agreement to pay a client/co-party/witness whose testimony also bears upon the firm’s own potential liability.

Bankruptcy Judge Calls Out Brown Rudnick’s 50% Increase In Hourly Fees

By Scott Riddle Posted in Miscellaneous Cases, News and Comments

It is expensive to stay in Bankruptcy. Last month a Brown Rudnick lawyer tried to increase his hourly rate from $1,000 per hour to $1,500 per hour. Chief Judge Laurie Selber Silverstein in Delaware rejected the increase, “saying that no client would approve such a steep fee hike in the middle of a case.” See Reuters article.

“There may be a reason, but a 50% increase of someone’s rates is not something that any client I ever had would have accepted,” Silverstein said at a court hearing. “If he’s behind market, I don’t think he gets to catch it all up at one time.”

Judge Silverstein allowed $1,000 per hour for the lawyer. The case is In re Kidde-Fenwal, Inc. The highest hourly fees charged by Brown Rudnick partners is $2,250 per hour. As of February 2024, the Fee Examiner reported that 15 firms had billed over $20 million in the case, which was filed in May 2023.

Scott Riddle’s practice focuses on bankruptcy and reorganization. Scott has represented businesses and other parties in Bankruptcy cases for over 30 years. You can contact Scott at 404-815-0164 or scott@scottriddlelaw.com. For more information, click here.

LaVie Care Centers (and 281 Related Entities) File Chapter 11 Petitions in the Northern District of Georgia

By Scott Riddle Posted in News and Comments, Northern District Cases

I don’t typically post about new Chapter 11 filings unless there is something compelling about them, but almost 300 Chapter 11 cases for Lavie Care Centers and related entities filed on the same day qualifies as news here in the Northern District of Georgia. The Motion for Joint Administration alone is 49 pages, most of which is just the list of related debtors.

The Chief Restructuring Officer as of the petition date was Benjamin Jones of Ankura Consulting Group, Inc. He stated in his 53-page Declaration In Support of First Day Motions:

At the time of the initial onset of the COVID-19 pandemic, the Company was one of the largest operators of skilled nursing facilities in the nation, operating approximately 140 skilled nursing facilities, assisted living facilities and independent living facilities. As a result of the impacts of the pandemic, and in order to try to stabilize the Debtors’ financial condition, the Company exited operations at more than 90 facilities. Today, the Debtors operate 43 licensed facilities across five states that care for more than 3,700 residents on a daily basis, with approximately 3,600 employees. The Debtors’ current portfolio of facilities produce positive cash flow; however, the substantial continuing impacts of the pandemic and resulting facility divestitures continue to plague the business.

The Declaration states that Covid-19 was a major factor in the filings, and secured and unsecured debt is well over $1 billion.

US Trustee Investigating Possible Scheme to Take Debtors’ Equity in Real Property in Multiple Cases; Lawyer Sanctioned

By Scott Riddle Posted in Consumer Bankruptcy Guide, Eleventh Circuit Cases, Georgia State Cases, Middle District Cases, Miscellaneous Cases, News and Comments, Northern District Cases

In a very detailed 91-page Order entered in the Northern District of Georgia- and adopted by all Judges in the District – Judge Sacca addressed serious concerns of the United States Trustee over the handling of a Chapter 13 case by the Debtor’s lawyer. The United States Trustee is also investigating several other cases with similar fact patterns, and it appears that multiple debtors in this District have potentially lost well over $1 million in equity in their homes. The case is In re Day, Ch. 13 Case No. 23-52197-jrs, 2024 WL 1506791 (Bankr. N.D. Ga., entered April 5, 2024) (click here for .pdf). I will attempt to summarize the lengthy order and the fact pattern that appears in several other cases the US Trustee has identified so far, but one really should read the Order to understand the scope of the issues that will likely be investigated beyond Bankruptcy Court.

The Debtor is an 80-year widower who worked as a union iron worker for 41 years before retiring. His physical and mental health are declining, he is still recovering from a heart attack, and he is still grieving the loss of his wife in December 2021. He requires assistance from his family for his daily needs. His residence was titled solely in his wife’s name and it was encumbered by a 2009 reverse mortgage. The death of his wife triggered a default in the reverse mortgage and a foreclosure was scheduled for December 2022. The Debtor was overwhelmed with mail and phone calls that typically arise from foreclosure advertisements.

Terms of Confirmed Chapter 11 Plan Prohibit Malpractice Claim Against Debtor’s Counsel

By Scott Riddle Posted in Corporate & Fiduciary Litigation, Miscellaneous Cases, Small Business Bankruptcy, Uncategorized

The Third Circuit Court of Appeals issues a reminder to debtors’ counsel that they can protect themselves with beneficial (boilerplate) terms in a Chapter 11 Plan. In In re SC SJ Holdings, LLC, 2024 WL 1328233 (3rd. Cir. March 28, 2024), the Debtor was the owner of a hotel that was operated by Accor Management US, Inc. pursuant to a Hotel Management Agreement (“HMA”). After COVID related problems servicing its debt, Debtor consulted Law Firm for advice. Law Firm advised Debtor it should file a Chapter 11 petition and terminate the HMA with Accor, and it could emerge from the case in 100 days. Instead, the case lasted eight months and Debtor had to pay Accor more than $20 million in breach damages for rejecting the HMA. Debtor subsequently requested relief from certain terms of the confirmed Plan in order to pursue a malpractice claim against the Law Firm for the faulty advice.

The Plan contained provisions “for mutual releases among numerous parties as to any claims arising out of or related to the bankruptcy proceedings or to Debtors. Those release provisions cover Debtors’ ‘Related Persons,’ defined to include their ‘attorneys … and other professionals.‘”

More than six months after confirmation and three months after the Plan had been substantially consummated, Debtor filed its motion to modify the plan. The District Court held that the Debtor had not complied with §1127, which provides that a debtor may modify a plan at any time after confirmation and before substantial consummation, and §1144, which provides that a party may seek revocation of a confirmation order within six months after entry of the order “if an only if such order was procured by fraud.” Debtor could not satisfy the express requirements of either of the Code sections, the District Court found. The Third Circuit affirmed.

The lesson to Bankruptcy lawyers – review your boilerplate plan language and amend as appropriate.