Order vacating emergency order to allow foreclosure sale to take place.
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Two months after D's IFP application was approved, D filed a reaffirmation agreement in which she proposed to reaffirm a $34,000 debtor for a pickup truck; the reaffirmation agreement showed that D had obtained employment postpetition and take-home pay was $2700 per month; the reaffirmation agreement was approved on condition that Debtor pay the filing fee she was relieved of paying when she was unemployed.
Denying motion to set aside default judgment.
Judge James E. Massey (Retired)
Defendant’s second motion for summary judgment is granted. Plaintiff failed to respond to defendant’s motion, and defendant showed that plaintiff had failed to file Georgia tax returns for the years 1985 through 1987 and such debt is non-dischargeable pursuant to 11 U.S.C. § 523(a)(1)(B)(I).
Plaintiff-trustee’s motion for default judgment is granted. Plaintiff’s motion shows that defendant was properly served and that defendant failed to respond. Plaintiff is not entitled to turnover of property pursuant to 11 U.S.C. § 541, but facts she pled are sufficient to entitle her to recover the value of the property transferred under the fraudulent transfer section, 11 U.S.C. § 548.
Honorable Paul W. Bonapfel
Trustee seeking to recover voidable preference under § 547(b) and defendant filed cross-motions for summary judgment. The Court grants partial summary judgment to the Trustee that all elements of a preference have been established but concludes that there are disputed issues of fact that preclude entry of summary judgment on the defendant’s ordinary course of business defense under § 547(c)(2).
Chapter 13 trustee objects to confirmation of the debtor’s plan on the ground that continuation of direct payments on student loans results in failure to pay all disposable income to unsecured creditors under § 1325(b)(1)(B). The court concludes that the plan is potentially confirmable for two reasons. First, § 1322(b)(5) permits continuation of payments on long-term unsecured debt, and the Debtor’s use of PDI to make such payments results in all PDI being paid to unsecured creditors. Second, although the student loan payments do not qualify as a “reasonably necessary” expenditure under § 707(b)(2)(A)(ii)(I) in view of its specific exclusion of payments on debts, the circumstances surrounding the Debtor’s student loans, including their nondischargeable nature, may qualify as a “special circumstance” under § 707(b)(2)(B) that may justify a downward adjustment of PDI if the Debtor properly documents and explains them under § 707(b)(2)(B)(ii) and (iii).
Order denying the Defendant’s motion to exclude issue from proposed pretrial order. If the Plaintiff had failed to properly plead the issue and thus deprive the Defendant of the ability to prepare a defense in anticipation of trial, the Defendant would have a basis for objecting the inclusion of the issue in the pretrial order. However, the Plaintiff’s complaint sufficiently set forth the claim. A factual dispute as to whether the Plaintiff can prove the claim is not a basis for exclusion of the claim from the pretrial order.