Following trial, These findings of fact and conclusions of law provide a detailed factual and legal analysis of the Defendant’s ordinary course of business and new value defenses under section 547(c)(2) and (4) in this preference action. This document also discusses the basis for awarding pre-judgment interest on the amount of avoided preferences.
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Judge James E. Massey (Retired)
On motion for summary judgment in preference action, Court denied motion in part with respect to the affirmative defense of new value under section 527(c)(4).
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The Chapter 13 Trustee objected to confirmation of Debtor’s plan, which provides for a term of 3 years, contending that the gross income of the non-debtor spouse should be included in calculating the applicable commitment period because section 1325(b)(4)(A)(ii) refers to the “current monthly income of the debtor and debtor’s spouse combined.” For a variety of reasons, the Court disagreed, holding that a non-debtor spouse has no “current monthly income” as that term is defined in section 101(10A).
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Honorable Mary Grace Diehl (Recall)
Denying Debtor’s exemptions in a watch and a boat, which Debtor concealed from the Chapter 7 Trustee, based on the Court’s authority under 11 U.S.C. § 105(a) to prevent abuse of the bankruptcy process. Also denying Trustee’s request to surcharge Debtor’s remaining exemptions to cover the administrative costs incurred by the estate as a result of Debtor’s concealment. The Bankruptcy Code provides specific circumstances for using a Debtor’s exempt property to satisfy administrative expenses, and provides specific remedies for a debtor’s failure to turnover estate property, but the circumstances of Debtor’s case did not justify using the Court’s equity power to grant a surcharge.
Denying Creditor’s motion to dismiss case and denying Creditor’s motion to validate foreclosure sale, based on the inapplicability of 11 U.S.C. § 109(g)(2). Although Debtor’s prior case was dismissed after Creditor had filed a motion for relief from stay, that case was a Chapter 13 case for which Debtor was ineligible, Creditor sought to have Debtor’s prior case converted to a Chapter 11, and Debtor had extensive equity in property securing Creditor’s debt. Therefore, Debtor’s dismissal of the Chapter 13 case was not in response to Creditor’s motion for relief from stay, the subsequent Chapter 11 filing did not represent the harm that 11 U.S.C. § 109(g)(2) is intended to remedy, and the bankruptcy estate was best served by preserving equity in Debtor’s property.
Judge Joyce Bihary (Retired)
The debtor was a corporation and under Bankruptcy Rule 9001(5), the debtor was defined as any and all officers, members or persons in control. Debtor’s principals fell within the scope of the definition of “debtor” pursuant to Rule 9001(5) and could be examined under Bankruptcy Rule 2004 when the Court so ordered.
11 U.S.C. §§ 523(a), 727; Part VII Fed. R. Bankr. P. (Creditor’s letter which alleges Debtor is hiding assets and objects to discharge and dischargeability of a judgment is construed as a motion to extend the time to file and serve a proper complaint in accordance with Part VII of the Fed. R. Bankr. P.
Honorable Paul W. Bonapfel
(Order denying Debtor’s Motion for Contempt for Violation of the Automatic Stay by the Internal Revenue Service/United States of America. IRS’ setoff of 2007 prepetition federal tax refund against 1996 prepetition federal income tax liability pursuant to 26 U.S.C. § 6402(a) did fell within the exception of 362(b)(26) and did not violate the automatic stay. Further, IRS has discretion to determine how such overpayments are applied.
(order recharacterizing claim as nonpriority unsecured claim for marital property settlement and overruling objection to confirmation pursuant to section 1322(a)(2), after concluding that debt owed to debtor's ex-spouse was not in the nature of alimony or support).
Order directing DA to turnover prepetition retainer as property of the estate);