Secured creditor filed proof of claim and later employed an attorney who filed a motion for relief from stay. Subsequently, debtor objected to proof of claim and served the creditor but not the creditor's attorney. The Court denied the objection in part because service on the creditor's attorney was required by the Court's local rules.
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Opinions
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Judge James E. Massey (Retired)
Parties sought court approval of compromise in suit to determine dischargeability of debt. Held: Motion denied because the Bankruptcy Code does not provide for approval of such compromises. Moreover, a motion to approve a compromise, when appropriate, should be filed in the main case, not the adversary.
NOT INTENDED FOR PUBLICATION
This case illustrates two points: (1) once a motion is denied, it cannot be amended to cure whatever led to its denial, and (2) a second motion for reconsideration is almost always improper and violates BLR 9023-1.
NOT INTENDED FOR PUBLICATION
Trustee moved for a default judgment on a complaint to avoid liens either as a violation of section 362 or as a preference under section 547. According to the complaint, one of the defendants held a mechanics lien recorded during the preference period. Held: Motion denied as to Defendant holding mechanics lien. Section 547(c)(6) bars avoidance of a statutory lien not avoidable under section 545, and complaint alleged no facts to show that lien was avoidable under section 545. Mention of statutory lien in complaint eliminated need for defaulted Defendant to prove affirmative defense under section 547(g).
NOT INTENDED FOR PUBLICATION
The complaint filed by debtor seeking to determine that tax debt was dischargeable referred to the debt as “payroll taxes.” Defendant Revenue Department moved to dismiss for failure to state a claim, arguing that a debt for payroll taxes falls squarely within the exception to discharge under § 523(a)(1)(A). Held: Motion denied. “Payroll taxes” is imprecise and could refer to taxes owed by Plaintiff for wages, as opposed to withholding taxes not paid over to Defendant.
NOT FOR PUBLICATION
Postconfirmation modification of Chapter 13 plan proposing to surrender vehicle in satisfaction of debt may not be approved under section 1329 of the Bankruptcy Code.
Adversary dismissed pursuant to Fed. R. Civ. P. 4(m) , made applicable by Fed. R. Bankr. P. 7004, for failure to serve summons and complaint within 120 days of filing of adversary.
Portion of Debtor’s emergency motion to reimpose stay seeking expedited hearing denied where motion was served by mail and failed to allege any facts to show the existence of an emergency.
Failure to account for proceeds of sales of lottery tickers is a defalcation while acting in a fiduciary capacity and debt related thereto is not dischargeable under 11 U.S.C. § 523(a)(4).
NOT INTENDED FOR PUBLICATION
Fee application in Chapter 11 case was denied in part primarily because the work was not necessary.
NOT INTENDED FOR PUBLICATION