Debtor filed chapter 13 petition after his bank placed a hold on his bank account due to suspicion that funds wired into the account did not belong to the debtor. The Debtor filed motions seeking turnover of the property and damages, including damages for violation of the stay. The Court denied the motions because they were improperly served, because an adversary proceeding is required to recover property of the estate, and because the question of whether the stay had been violated determined on whether the bank had acted properly, an issue that the Court would abstain from deciding. The Court granted the motion of the banks for relief from stay to permit determination of issues relating to the account. The Court denied confirmation of the plan because it did not meet confirmation requirements. Finally, because the debtor’s purpose in filing was to obtain a forum for seeking turn-over of the bank account and the assertion of claims against the banks, rather than debt relief, the Court dismissed the case
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Opinions
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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.
“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.
Judge Joyce Bihary (Retired)
Fed R. Civ. P. 8(a) and 12(e); Defendant Gibson’s pro se motion for more definite statement is denied. Defendant argued that Plaintiff’s amended complaint contained only conclusory allegations and failed to provide facts enabling him to frame a responsive pleading. Plaintiff’s ten count complaint lays out the claims made and relief sought and is not so ambiguous or unintelligible that Defendant cannot frame a response. To the extent Defendant lacks information regarding the allegations in the complaint, he will have the opportunity to acquire such information through the discovery process.
Honorable Mary Grace Diehl (Recall)
Order Directing Debtors to File a Post-confirmation Amendment, Dismiss the Chapter 13 Case, or Take Other Appropriate Action: The Court adopts the reasoning set forth in In re Zehrung,351 B.R. 675 (W.D. Wisc. 2006), and determines that the Court will not confirm a debtor’s plan over the objection of a secured creditor where a debtor proposes to surrender collateral in full satisfaction of a claim pursuant to 11 U.S.C. §1325(a)(5)(C) and the parties agree that the collateral is worth less than the amount of the debt it secures. (Order on appeal)
Holding non-support, marital debt dischargeable under section 523(a)(15)
Denying motion to reopen for purpose of filing a reaffirmation agreement, as reaffirmation agreement would not have been effective because it was executed after the entry of the debtor's discharge.
Judge James E. Massey (Retired)
Defendant supported motion for summary judgment on debtor’s complaint to determine dischargeability of tax debt with affidavit stating that IRS revised debtor’s tax liability upward. This fact, Defendant asserted, meant that Debtor was required to file an amended state return, thereby rendering tax debt nondichargeable under section 523(a)(1)(B). Held: Motion denied. O.C.G.A. § 48-7-82(e)(1) requires amended return when taxpayer’s “net income,” not tax liability, is changed by the IRS. There was nothing in the record to show Debtor’s net income had changed.
NOT INTENDED FOR PUBLICATION
Debtor proposed plan seeking to surrender a car in full satisfaction of debt and thereby deprive secured creditor of an unsecured claim. Plan was based on the hanging paragraph at the end of section 1325(a) of the Bankruptcy Code. Held: Confirmation denied as not being in compliance with section 1325(a)(5)(B).
NOT INTENDED FOR PUBLICATION
Trustee’s motion for reconsideration of order denying Trustee’s motion to disqualify former officer’s attorney in litigation over administrative claim was denied because Trustee showed no fact or law overlooked by the Court.
NOT INTENDED FOR PUBLICATION