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Summary for Publication: In re Edward J. Romero, Bankr. Case No. 15-11254-TBM (Chapter 7)(Applicability of Colorado's homestead exemption.)
The Court sustained the Chapter 7 Trustee's objection to Debtor's claim of exemption under Colo. Rev. Stat. § 38-41-201 or Â§ 38-41-201.5 in a Peterbilt truck. Though the Debtor has been living on the Peterbilt truck continuously since approximately 1998 and considers it to be his home, under applicable principles of statutory construction, the Court concludes that the term "homestead" requires some association with realty. Because the Peterbilt truck is not permanently or semipermanently installed on real property, it is not associated with the land and does not qualify as a homestead.
Posted: 6/26/2015 7:35:21 AM
Ogden v. PNC Bank, N.A., Adversary Proceeding No. 13-01054 EEB
Chapter 13 debtor filed a complaint against her mortgage lender, alleging the bank violated the automatic stay, her chapter 13 plan, the confirmation order and Fed. R. Bankr. P. 3002.1, by misapplying her postpetition mortgage payments and raising the amount of her postpetition payments to recover prepetition arrears. The Court found the bank had created confusion in its system of accounting, which essentially keeps two sets of books to reflect postpetition mortgage paymentsâ€”one for bankruptcy purposes and one for non-bankruptcy purposes. The non-bankruptcy accounting tracks all amounts contractually due under debtor's loan, including late fees, in the event that debtor fails to complete her chapter 13 plan. The bank failed to clearly communicate this fact to the Debtor. However, because the bank had not sought to collect contractually-due late fees in bankruptcy, the Court found no violation of the Code attributable to this accounting system. The Court noted that the Code only provides for limited court oversight of mortgage lenders during the term of a chapter 13 plan, and that debtor may have remedies under RESPA or, at the conclusion of her plan, under 11 U.S.C. § 524(i), if the bank fails to appropriately account for her payments.
Posted: 6/24/2015 8:26:35 AM
In re Gonzales; Case No. 09-27194 HRT; Order entered June 9, 2015 (11 U.S.C. § 1328(a); FED. R. BANKR. P. 3002.1).
The Court confirmed the Debtors' chapter 13 plan (the "Plan"), which included a provision to cure a prepetition mortgage default and to make current mortgage payments directly to the mortgage creditor. Over the course of the 60 month Plan, the Debtors made all of their payments to the chapter 13 trustee (the "Trustee"). Thereafter, the Debtors filed certifications that they had complied with all of their payments and obligations under their Plan. Upon the Trustee filing a request for discharge, the Court entered
the Debtors' discharge. Prior to certifying the case for discharge, the Trustee had served a notice on the mortgage creditor under Rule 3002.1(f) giving notice that the Debtors had paid the full amount required to cure the pre-petition mortgage default. The creditor filed a timely response under Rule 3002.1(g). It agreed that the pre-petition default had been cured. However, it alleged a post-petition default in direct payments of over $49,000.00 or about 37 missed payments. No interested party sought a Court determination under Rule 3002.1(h) or otherwise informed the Court of the alleged default prior to discharge. The allegation of Debtors' failure to make the required payments directly to the mortgage creditor came to the Court's
attention shortly after the discharge was entered. The Court entered an order for the Debtors and the Trustee to show cause why the Debtors' discharge should not be vacated as improvidently granted. The Debtors did not dispute the default. Following a hearing on the matter, the Court held that 11 U.S.C. § 1328(a) only authorizes the Court to grant a discharge in a chapter 13 case "after completion by the debtor of all payments under the plan" and direct payments to a creditor pursuant to a provision of a confirmed plan are "payments under the plan." The discharge in this case was improperly granted and the Court vacated the Debtors'
discharge because they did not make all payments required under the terms of their confirmed Plan.
Posted: 6/11/2015 7:13:35 AM
Wellness International Network, LTD., ET AL. v. SHARIF (United States Supreme Court)
Certiorari to The United States Court of Appeals for The Seventh Circuit.
Posted: 6/1/2015 8:29:46 AM
In re Scrubs Car Wash, Inc., No. 12-31204 ABC, slip op. (Bankr.D.Colo. March 20, 2015) (oral ruling given on February 13, 2014; judgment entered on February 18, 2014). 11 U.S.C. §§ 1111(b)(2) and 1129(b)(2)(A)(i).
In the context of a Chapter 11 reorganization, Judge Campbell denied confirmation of a plan. Among the grounds for denial, the Court found that the debtor's treatment of an undersecured creditor which had elected treatment under section 1111(b) of the Code and which objected to confirmation of the plan, did not comply with section 1129(b)(2)(A) of the Code. The opinion includes a detailed analysis of the interplay of the two sections of the Bankruptcy Code.
Posted: 3/23/2015 10:01:22 AM
Sender v. Golden (In re Golden); Case No. 14-1523 HRT; Order entered March 16, 2015 (11 U.S.C. §§ 549(a) & 1327(b)).
The Chapter 7 Trustee, in a case converted from Chapter 13, filed this adversary proceeding under 11 U.S.C. § 549(a) to recover Debtor's post-confirmation, pre-conversion, transfer of proceeds from the sale of Debtor's homestead to Debtor's non-filing spouse. Under 11 U.S.C. § 1327(b) and the terms of Debtor's Chapter 13 plan, the home revested in the Debtor upon confirmation. The Court followed the reasoning of U.S. v. Richman (In re Talbot), 124 F.3d 1201 (10th Cir. 1997) to determine that revesting had the effect of returning full ownership and control of the property to the Debtor. Therefore, because the property had revested in the Debtor at the time of the transfer, it was not of "property of the estate." The Chapter 7 Trustee's claim was dismissed.
Posted: 3/17/2015 2:07:11 PM
In re Western Capital Partners LLC, Case No. 13-15760 MER; Order entered January 28, 2015 (Post-Confirmation Modification of Chapter 11 Plan and Substantial Consummation)
The reorganized debtor requested the post-confirmation modification of its Chapter 11 plan of reorganization under 11 U.S.C. § 1127(b), and a creditor objected. Section 1127(b) provides a fixed time period for a reorganized debtor to modify a confirmed Chapter 11 plan after confirmation and before substantial consummation of the confirmed plan. "Substantial consummation" is defined in 11 U.S.C. § 1101(2). Even if the proposed modification is sought within this narrow window, a plan may be modified only if circumstances warrant such modification, and the Court confirms the proposed modified plan after notice and a hearing.
The Tenth Circuit has not addressed the issue of substantial consummation in the context of a proposed Chapter 11 plan modification, but has applied "substantial consummation" as a factor in the equitable mootness doctrine. The Court followed the Tenth Circuit's prior application of § 1101(2) to address whether the reorganized debtor's confirmed plan was substantially consummated, and further analyzed whether circumstances warranted the requested confirmation. In this matter, the Court concluded the confirmed plan had been substantially consummated thereby barring the requested modification, and even if the modification was requested within the statutory window, circumstances did not warrant the requested modification.
Posted: 2/13/2015 8:46:25 AM
In re SRKO Family Limited Partnership, Case No. 10-13186-SBB
The Court confirmed a Chapter 11 Plan of Reorganization proposed by a Committee of lien-holding creditors of the Debtor entity but reserved approval of two provisions under the Plan for later determination. The case was commenced by a Jannie Richardson as the pre-petition managing member of the Debtor entity. The lien-holders' Committee proposed that a post-confirmation permanent injunction be placed against Ms. Richardson, barring her from holding herself out as an agent of the newly reorganized Debtor and prohibiting her from entering the property of the reorganized Debtor. The lien-holders' Committee also proposed that this Court retain jurisdiction post-confirmation over any claims asserted by the lien-holders' Committee or the reorganized Debtor against Ms. Richardson or any other of her affiliates.
The Court applied the test for permanent injunctions set forth by the United States Supreme Court in eBay Inc. v. MercExhange, LLC and found that based on the testimonies provided by the Trustee appointed in the personal Chapter 11 bankruptcy case of Ms. Richardson and the chief executive officer of the newly reorganized Debtor, and based on this Court's own observations of Ms. Richardson's conduct over a period of two and a half years, an injunction spanning eighteen months was proper to allow the Debtor reasonable time to undertake the Plan. The Court also opted to retain jurisdiction of matters post-confirmation, concurrent with the jurisdiction of other courts of competent jurisdiction.
Posted: 1/12/2015 7:42:15 AM
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