“Hanging paragraph” following § 1325(a)(9) that makes § 506 inapplicable to treatment of secured claims under § 1325(a)(5) does not permit plan to provide for surrender of 910 car in full satisfaction of claim.
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Honorable Paul W. Bonapfel
“Hanging paragraph” following § 1325(a)(9) that makes § 506 inapplicable to treatment of secured claims under § 1325(a)(5) does not permit plan to provide for surrender of 910 car in full satisfaction of claim.
Default judgment on creditor’s fraud claim does not have issue preclusive (collateral estoppel) effect in later dischargeability under Colorado law. Even if it does, bankruptcy court is not required to give issue preclusive effect to a state court default judgment under the full faith and credit clause, 28 U.S.C. § 1738, in dischargeability matters that must be brought in bankruptcy court under § 523(c)
Agreement made as part of settlement of state court litigation including language that “the judgment including claims for fraud which may not be dischargeable in a bankruptcy proceeding” does not provide sufficiently detailed findings of fact that would entitle consent judgment to issue preclusive effect under Florida law. Summary judgment to plaintiff in § 523(a)(2) dischargeability action is denied.
Claim for non-priority taxes subject to a lien is allowed as secured to the extent of the value of the debtors’ property. The tax lien is a statutory lien that is not avoidable under § 522(f)(1). Under O.C.G.A. § 48-2-56(a), a tax lien covers all property in which the taxpayer has an interest. A debtor cannot exempt assets that are subject to a tax lien, notice of which is properly filed, under § 522(c)(2)(B). In the absence of a showing that the tax lien was not properly filed, the claim is allowable as a secured claim.
(Order denying Plaintiff’s motion for summary judgment because there was a dispute of fact as to whether trustee materially breached real estate sale agreement by failing to provide notice of bankruptcy approval and, if there was a breach, whether the defendant waived breach by requesting an extension of closing).
In trustee’s action under former O.C.G.A. § 18-2-22 to set aside two fraudulent conveyances, the court determined after trial that the conveyances were made without consideration, but not with actual intent to defraud. However, with regard to the first conveyance to the debtor’s wife, the entry of a default judgment against the debtor on a disputed claim after the conveyance does not preclude the debtor’s wife from challenging the claim and the default judgment does not establish the debtor’s liability on the claim for purposes of the fraudulent conveyance action against her. Absent proof beyond the default judgment of the debtor’s liability on the claim, the trustee has not established that the debtor was insolvent at the time of the conveyance. The court reopened the evidence to permit the parties to introduce additional evidence on the question of the debtor’s insolvency at the time of the conveyance.
(includes doc no. 44 (OrDer entered July 6, 2006))(A lawyer retained by the Chapter 13 debtor to represent her in an action for the wrongful death of their son settled the action for policy limits, deducted his one-third contingent fee, and disbursed the balance to the debtors, who spent over half of the proceeds. The Debtor’s bankruptcy counsel then filed an application for approval of the employment of special counsel, approval of the settlement, payment of special counsel’s fee, and disbursement of the net proceeds to the chapter 13 trustee. These applications did not disclose the prior disbursement of the funds. After the court approved the applications in the absence of objection, the chapter 13 trustee filed a motion to vacate the orders and to dismiss the case when she discovered that the funds were not available. The court vacated its prior orders and ordered bankruptcy counsel and special counsel to show cause why their fees should not be disallowed or disgorged and why sanctions should not be imposed.)
An application for unclaimed funds paid into the court’s registry by a trustee pursuant to 11 U.S.C. § 347(a) must show that the creditor has a present entitlement to the funds. An applicant seeking unclaimed funds due to distributions made on account of a secured claim must show that the debt has not been satisfied through payment or foreclosure and that an amount is currently due and payable to which the unclaimed funds may lawfully be applied. Because the applicant has not done so, the application is denied without prejudice. Any future application must be served on the debtors, their counsel, and the trustee.
An application for unclaimed funds paid into the court’s registry by a trustee pursuant to 11 U.S.C. § 347(a) must show that the creditor has a present entitlement to the funds. An applicant seeking unclaimed funds due to distributions made on account of a secured claim must show that the debt has not been satisfied through payment or foreclosure and that an amount is currently due and payable to which the unclaimed funds may lawfully be applied. Because the applicant has not done so, the application is denied without prejudice. Any future application must be served on the debtors, their counsel, and the trustee.