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Unpublished Opinions

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Judge Joseph G. Rosania, Jr. (JGR)

In re Fong, Case No. 20-16813-JGR. Order entered November 23, 2021 (Doc. 230) (granting extension of time to respond to claim objections where creditors missed response deadline after a period of abeyance) 11/23/2021

In two nearly identical but separately administered, contentious individual Chapter 11 Subchapter V cases (which are only two of five total bankruptcy cases involving the same parties), three jointly-represented Creditors timely filed proofs of claim totaling nearly $1.8 million. Debtors timely objected to these claims. Before Creditors’ deadline to respond to the claim objections had passed, the Court held the cases in abeyance to allow for settlement negotiations. To begin the abeyance, the parties executed a standstill agreement that clearly set forth numerous pending deadlines, including Creditors’ response deadline. Creditors had approximately nine days left to respond to the claim objections.

The abeyance lasted approximately four months. The parties were unable to reach a settlement and the case timelines began running. Creditors failed to respond to Debtors’ claim objections within the remaining nine days before the deadline. Approximately 30 days after the deadline, Debtors filed certificates of non-contested matter. Two days later, Creditors sought leave to file tardy oppositions to the claim objections due to “excusable neglect” under Fed.R.Bankr.P. 9006(b)(1) and offered to file their responses within 24 hours of a Court order.

The Court granted Creditors’ request to file late responses to Debtors’ claim objections. The Court found that Creditors acted in good faith because the missed deadline was a result of counsel’s inadvertence, not a strategic litigation ploy, and because their proofs of claim were facially valid. However, Creditors bore the entire fault for the missed deadline. Ultimately, the minimal prejudice to Debtors and federal courts’ strong preference for deciding issues on their merits were the deciding factors in allowing Creditors’ late response. Although Debtors protested further delays in their cases, Debtors were complicit in the delays because they waited approximately 30 days before filing certificates of non-contested matter which could have been filed as early as 2 days after the deadline. Furthermore, Debtors could not claim surprise at Creditors’ responses. Creditors were not seeking to advance a new legal theory or claim but only seeking to defend their previously-filed proofs of claim. In the context of five contentious, highly-litigated bankruptcies involving the same parties, Debtors knew or should have known that Creditors intended to pursue their claims of nearly $1.8 million. The balance of equities favored allowing Creditors’ late responses.

Douglas County Department of Human Services v. Holli Ann Rioux, Adv. Pro. No. 19-01292-JGR, Findings of Fact and Conclusions of Law, entered August 2, 2021 (Doc. 48) (Exception to Discharge 11 U.S.C. § 523(a)(2)) 08/02/2021

The Douglas County Department of Human Services (“DHS”) sought a determination that Holli Ann Rioux (“Defendant”) obtained public assistance benefits fraudulently.  Specifically, DHS alleged Defendant misrepresented her household size and household income in completing applications for benefits by not including her common-law marriage husband or his income.

The Court conducted a two-day trial in which DHS introduced evidence indicating that the Defendant and Eric Michael Rosen (“Rosen”) established a common-law marriage.  Defendant and Rosen filed separate tax returns, maintained separate bank accounts, and denied that they held themselves out as married to third parties.  The Court applied the recently revised test for proving common-law marriage set forth in the case of Hogsett v. Neale, 478 P.3d 713 (Colo. 2021) and determined that Defendant and Rosen had a mutual intent to be in a marital relationship.  Accordingly, Defendant, by omitting Rosen’s income from the applications, obtained the public assistance benefits fraudulently.

The complaint filed by DHS was a one-count complaint under 11 U.S.C § 523(a)(2) for fraud.  DHS did not specify whether it was proceeding under § 523(a)(2)(A) or (B).  In closing argument, Defendant, for the first time, requested dismissal of the complaint for failure to plead a claim under § 523(a)(2)(B).  The Court granted the oral motion of DHS to amend the complaint to conform to the evidence permitting the claim under § 523(a)(2)(B).  The Court then provided Defendant the opportunity to present additional evidence in support of any defenses to the § 523(a)(2)(B) claim, which she declined.  The Court found that the various food and Medicaid assistance applications were statements in writing respecting the Defendant’s financial condition and were materially false in many respects, including the failure to include her common-law husband and his income as part of her household composition.  Therefore, the Court held that the debt was non-dischargeable.

In re: Bonham, Case No. 19-18679-JGR, Order Denying Motion to Appoint Chapter 11 Trustee or Convert Case to Chapter 7 entered May 26, 2021 (Doc. 468) 05/26/2021

The Debtor, Ralph Bonham, sought relief in the Bankruptcy Court under Chapter 11 after a judgment was entered against him in the approximate amount of $4.6 million and in favor of the Conservatorship of Robert D. Buchanan, the Debtor’s stepfather. The Debtor’s appeal of the judgment is currently pending.

The judgment arose from allegations including breach of fiduciary duty and undue influence in connection with certain business schemes the Debtor perpetrated upon Buchanan including the failure to pay appropriate interest on moneys borrowed, and the misappropriation of proceeds from the sale of a multi-family apartment complex. 

The Court conducted a five-day evidentiary hearing on the Conservator’s Motion to Appoint a Chapter 11 Trustee or Convert Case to Chapter 7.  The Court reviewed the lengths to which the Conservator went in attempting to derail the Debtor’s reorganization efforts.  The Conservator objected to nearly every motion the Debtor filed.  He objected to fee applications on behalf of estate professionals. He objected to the sale of stock in H.E. Whitlock, Inc., the Debtor’s closely held construction company. He attempted to intervene in what was claimed to be a sham divorce proceeding between the Debtor and his spouse.  The Court found the Conservator’s attempts to exercise control over a legal malpractice action being pursued by the Debtor were subject to the automatic stay under 11 U.S.C. § 362(a)(3).  The Court reviewed the numerous adversary proceedings related to the case and characterized the litigation as “a war.” 

In considering whether the appointment of a Chapter 11 Trustee was appropriate, the Court applied a standard of proof of a preponderance of the evidence rather than a clear and convincing standard.  The Conservator argued the appointment of a Chapter 11 Trustee would eliminate conflicts of interest arising from the Debtor preferring his spouse over other creditors as evidenced by the alleged sham divorce.  The Conservator argued the Debtor demonstrated a lack of good faith, that the Debtor was squandering assets through the retention of multiple professionals, that there were issues with the accuracy of the Debtor’s operating reports, and that a neutral trustee was necessary to diffuse the acrimony in the two-party dispute.  The Conservator alleged that the Debtor was not pursuing avoidance actions against insiders, that the Debtor had not timely filed a plan of reorganization, that the liquidation of assets and prosecution of the malpractice action would be protracted over several years, and that the Debtor is not trustworthy as evidenced by the pre-petition jury verdict resulting in the judgment.  Each of the allegations was rebutted by the Debtor and the Court determined, in reviewing the totality of circumstances, that the Conservator did not meet his burden of proof warranting the appointment of a Chapter 11 Trustee.  The Court considered the trustworthiness of the Debtor, the Debtor’s past and present performance in the bankruptcy case, prospects for reorganization, the confidence of the business community and of the creditors in the Debtor, and weighed the cost and benefits that would be derived by the appointment of a trustee.  The Court found that the Debtor was trustworthy and properly managing the Chapter 11 estate, and found the case was not a two-party dispute as several bank claims were also involved. Importantly, the Court considered the Debtor’s testimony that if the appeal was unsuccessful, he was willing to sell all of his assets, if necessary, to satisfy his creditors. The Motion to Appoint a Chapter 11 Trustee or Convert Case to Chapter 7 was denied.

In re Vialpando, Case No. 20-11403 JGR Order entered September 22, 2020 (confirmation of Chapter 13 plan funded solely by third-party contributions) 09/22/2020

A Chapter 13 debtor and her non-filing spouse had jointly purchased a condominium property outright at a foreclosure sale in 2012. However, they had struggled to make HOA payments since 2013, amassing an arrearage in excess of $20,000, and to pay real property taxes on the property since 2018.

In 2019, the debtor’s husband filed a Chapter 13 case to halt a foreclosure action by the HOA. The husband was unable to obtain a confirmed plan due to his failure to file and pay state and federal income taxes, and his case was ultimately dismissed for failure to make plan payments. The husband later testified that his plan payments were “too expensive.”

Three days after the closure of her husband’s Chapter 13 case, the debtor filed this case to halt a second foreclosure action by the HOA. The debtor’s second amended Chapter 13 plan proposed to cure the arrearage owed to the HOA over 44 months, and to pay 100% of her nominal unsecured debt over 60 months. The debtor, who was a student, had long-suffered medical problems which prevented her from attending school or working during the COVID-19 pandemic. Accordingly, the sole source of income to fund the debtor’s plan was “income from husband.”

The HOA objected to confirmation of the debtor’s plan, arguing that the plan was not feasible, the plan was not proposed in good faith, and the HOA was not adequately protected by a plan which proposed to cure the HOA’s arrearage in 4 years. The HOA also moved for relief from the automatic stay and the co-debtor stay.

The Court held an evidentiary hearing on the matters wherein the evidence showed that property taxes were owed for 2019; property taxes for the second half of 2018 had been sold at tax sale and not yet redeemed; the debtor’s husband had shielded her from problems relating to the HOA and his Chapter 13 case to avoid upsetting her while she was ill; the couple’s finances were “beyond tight” due to the debtor’s ongoing medical bills; the couple had been experiencing martial problems and only lived together part time; and the couple had been unable to obtain homeowner’s insurance on the property for several years due to unrepaired flood damage to the interior walls.

The debtor’s husband testified that he owned his own business, and that his current income was from landscaping and labor work. He did not specify the amount of his income or provide any documentation of its source or amount. Nor did he provide evidence of his current expenses. The husband also did not provide any documentation to establish that he had filed his outstanding income tax returns or paid any of the outstanding federal and state income taxes.

The threshold issue was whether the plan was feasible. Relying, in part, on In re Khan, No. 14-13514 MER, 2015 WL 739854 (Bankr. D. Colo. Feb. 19, 2015), the Court found that the totality of the circumstances demonstrated that the plan was not feasible. Because the Court found that the plan was not feasible, it did not need to reach the issue of good faith.

The Court denied confirmation, dismissed the case, and granted both requests for stay relief, but the Court stayed the dismissal and stay relief orders for 30 days to allow the debtor and her husband time to file a motion to sell the property.

Atna Liquidating Trust, v. AFCO Premium Credit, LLC, Adversary Proceeding No. 17-01558-JGR (Avoidance of alleged fraudulent transfers under 11 U.S.C. § 544(b) and applicable state fraudulent transfer law 07/10/2020

Atna Liquidating Trust, v. AFCO Premium Credit, LLC, Adversary Proceeding No. 17-01558-JGR (Avoidance of alleged fraudulent transfers under 11 U.S.C. § 544(b) and applicable state fraudulent transfer law; avoidance of constructive fraudulent transfers under 11 U.S.C.  § 548(a)(1)(b); and unjust enrichment.)

Atna Resources, Inc. and six related companies filed for relief under Chapter 11 of the Bankruptcy Code.  Before and at the time of the filings, only two of the related companies were operational and generated revenue, Briggs operating the Briggs mine, and Atna  operating the Pinson mine.  The affiliated Debtors utilized a centralized cash account (“CCA”) maintained by Canyon Resources Corporation (“Canyon”), headquartered in Golden, Colorado.

The Debtors’ Joint Chapter 11 Plan of Reorganization was confirmed on November 29, 2016. The Plan provided for the formation of a Liquidating Trust for the purposes of administering the assets transferred to the Liquidating Trust, resolving disputed claims, pursuing the retained causes of action, and making distributions to the beneficiaries provided for under the plan.  By its simplest terms, assets belonging to each respective Debtor estate were to be transferred to the Liquidating Trust, then disbursed to the creditors of the same respective Debtor estate.

The Trustee’s Amended Complaint seeks to avoid the payments made to AFCO Premium Credit, LLC (“AFCO”) by Canyon as constructively fraudulent.  AFCO entered into a series of insurance premium financing agreements with the affiliated Debtors’ Canadian parent company, Atna Resources, Ltd. (“Atna”) to finance insurance covering the related companies.

The theory being advanced was the comprehensive insurance covered all the affiliated companies, while only Pinson and Briggs were generating revenues to fund the CCA.  Funds in the CCA paid to AFCO that did not directly benefit Pinson or Briggs could be recovered as constructively fraudulent.

In a prior related Adversary Proceeding, Atna Liquidating Trust v. Elwood Staffing Services, Inc. (“ESS”), Adv. Proc. No. 17-01160-JGR, this Court entered proposed findings of fact and conclusions of law determining that similar fraudulent transfer claims asserted by the Trustee were barred by controlling Tenth Circuit precedent set forth in In re Slack-Horner Foundries Co., 971 F.2d 577 (10th Cir. 1992), which requires the Trustee to avoid an initial transfer before the Trustee can recover from a subsequent transferee, and that the fraudulent transfers were not adequately reserved by the terms of the Plan.

United States District Court Judge Robert E. Blackburn approved and adopted the analysis and conclusions of the bankruptcy court and remanded the matter for resolution of remaining preference claims asserted by the Trustee against ESS.

Prior to resolution of the remaining claims, the Trustee voluntarily dismissed the ESS Adversary Proceeding.

Based on the ESS ruling, AFCO moved for summary judgment.  The Trustee countered by arguing that because the ESS Adversary Proceeding was dismissed, it had no preclusive effect.

The Court entered an Order Dismissing Adversary Proceeding applying the law of the case doctrine.

The conclusion that the Trustee lacked standing to pursue the constructive fraudulent claims was reached by examining the Joint Chapter 11 Plan in the Chapter 11 bankruptcy cases and determining the avoidance claims premised on state and federal constructive fraudulent transfer laws arising out of the CCA were not adequately reserved.  That conclusion applies to all causes of action brought by the Trustee on behalf of the beneficiaries of the Liquidating Trust and prevents inconsistency and reconsideration of matters previously decided in the case.  The three alternate grounds to depart from the application of the doctrine do not apply here: (1) there is no new evidence that is substantially different; (2) controlling authority has not changed; and (3) the conclusions of law proposed by this Court and adopted by the District Court in ESS Adversary Proceeding are not clearly erroneous and do not work a manifest injustice. 

Najera Chacon v. Hernandez, Adversary Proceeding No. 18-01318-JGR Order entered April 29, 2020 (exception to discharge under 11 U.S.C. §523(a)(4) and (a)(6)) 04/29/2020

Plaintiff and Debtor/Defendant had been involved in a romantic relationship.  Using funds received from the sale of the Debtor’s home in California, Plaintiff purchased a home in Denver.  Title to the home was held solely in the Plaintiff’s name.  The Debtor and her daughter relocated to Colorado sometime after the home was purchased and moved into the home.  Although Plaintiff and Debtor lived together, they never married.

An altercation occurred at the home which resulted in a criminal complaint for assault and disturbing the peace and the issuance of a protective order preventing Plaintiff from contacting the Debtor or her daughter.

As the criminal case advanced to trial, Plaintiff demanded the Debtor drop the criminal charges, enter into a settlement agreement providing for the sale of the home and division of the sale proceeds, and for a division of personal property. If she refused, Plaintiff threatened to sell the home and retain all the proceeds.

The settlement agreement provided certain personal property be retained by Plaintiff: Specifically, a Rolex watch, a Bulova watch, a gold medallion, a gold chain, and two rings (collectively, “jewelry”). 

The Debtor received $100,000 from the sale of the home pursuant to the terms of the settlement but Plaintiff claimed she wrongfully withheld the jewelry.  Plaintiff filed a replevin complaint in county court seeking return of two watches, a Bulova and a Rolex.  After an evidentiary hearing at which the Debtor, who does not speak English, was not represented by counsel, a money judgment of $15,000 was entered against the Debtor who later sought bankruptcy relief.

Plaintiff’s Complaint sought to except the judgment obtained in county court from discharge under the provisions of 11 U.S.C. § 523(a)(4) or, alternatively, (a)(6).

The evidence received at trial consisted primarily of conflicting testimony of the Plaintiff and a corroborating witness, and the testimony of the Debtor.  The Court found the Debtor’s testimony to be more credible, by a wide margin.

The Court questioned whether the settlement agreement was enforceable as a product of duress, but determined it was precluded from revisiting the issue as the obligation had been reduced to judgment.

The Court rejected the Plaintiff’s contention that the prior romantic relationship created a fiduciary duty within the meaning 11 U.S.C. § 523(a)(4).  The Court held the Plaintiff failed to establish by a preponderance of the evidence that the Debtor committed larceny or embezzlement, and further held Plaintiff failed to prove his claim that the Debtor committed any act of willful and malicious injury to his property under 11 U.S.C. § 523(a)(6).

 

Westmountain Gold, Inc., Case No. 17-11527 JGR Order entered April 7, 2020 (commencement of distribution and substantial consummation under 11 U.S.C. § 1101(2)) 04/07/2020

Debtors in jointly administered Chapter 11 cases moved the Court for entry of final decrees and closure of their cases. Schedule C to their Chapter 11 Final Reports and Applications for Final Decree reflected that payments completed under their confirmed Chapter 11 plan were as follows: Total administrative payments/fees and taxes - $222,436.11; and Total priority payments - $210,000. The debtors’ largest unsecured creditor objected, arguing that the cases had not been fully administered or substantially consummated because no payments had been made to secured or unsecured creditors.

The Court held a preliminary hearing on the applications and the objection and heard argument of the parties. The debtors argued that the cases should be closed for three reasons: (i) the plan provided for it; (ii) to minimize payment of United States Trustee fees; and (iii) to escape the stigma of bankruptcy. The confirmed plan provided that “[t]he Debtors will request entry of a final decree closing the case on or before the later of the date all Claim objections and any pending litigation is concluded or 180 days after the Effective Date of the Plan.”

The Court noted that, in the context of Chapter 11 reorganizations, courts have determined that a case has been “fully administered” when it has been “substantially consummated” under 11 U.S.C. § 1101(2). It was undisputed that under the facts of the cases before the Court, the first two elements of “substantial consummation” under 11 U.S.C. § 1101(2) had been satisfied. What remained at issue was whether distributions had “commenced” under the plan pursuant to 11 U.S.C. § 1101(2)(C).

The Court acknowledged the split of authority regarding the “commencement of distributions” element of the substantial consummation analysis and noted that the Tenth Circuit had adopted the majority view in the case of In re Centrix Fin., LLC, 394 F. App’x 485 (10th Cir. 2010). The Court cited to Judge Romero’s summary of the Tenth Circuit’s position on “commencement of distribution” in the case of In re W. Capital Partners LLC, No. 13-15760 MER, 2015 WL 400536 (Bankr. D. Colo. Jan. 28, 2015). Judge Romero explained: “in the Tenth Circuit, ‘commencement of distribution’ for the purposes of § 1101(2)(C) is satisfied when the reorganized debtor begins distributions under the confirmed plan. The Tenth Circuit’s position also disposes of [movant’s] contention [that] this Court should follow the minority position explained in In re Dean Hardwoods, Inc that ‘commencement should mean not just the beginning of payments to a single creditor, but the commencement of distribution to all or substantially all creditors.’”

The Court noted that the creditor had effectively argued the minority position by arguing that the plan had not been substantially consummated because no payments had been made to secured or unsecured creditors. The Court also noted that it was undisputed that distributions had been made to both administrative and priority claimants under the plan. Thus, the Court found that under the Tenth Circuit’s definition of “commencement of distribution,” 11 U.S.C. § 1101(2)(C) had been satisfied. The Court further found that, because the parties agreed that the remaining elements of the substantial consummation analysis under 11 U.S.C. § 1101(2) had been satisfied, the plan had been substantially consummated.

The Court acknowledged that, at the evidentiary hearing on plan confirmation, it had agreed to retain jurisdiction over the “execution and delivery” of a certain participation agreement by stipulation of the parties. The Court ordered the debtors to correct, file, and serve a finalized, fully executed, and complete copy of the participation agreement. The Court found that after the debtors complied with the Court’s order regarding the participation agreement, the plan having been substantially consummated, the cases would be fully administered. Accordingly, it would be appropriate for final decrees to enter and the cases to close.

In re Sheahan, Case No. 18-16991-JGR Order entered December 13, 2019 (objection to application for compensation – counsel for trustee) 12/12/2019

Debtors filed for relief under Chapter 7 of the Bankruptcy Code.  At the time of filing they were the sole shareholders and officers and directors of a Colorado corporation.  The Debtors listed on their schedule of assets a wage claim against the company and claim for monies loaned to the company.

The Chapter 7 Trustee hired counsel and filed an action against the company in state court.  The complaint was properly served on Mrs. Sheahan, the registered agent for the company, but no answer was filed.  Thereafter the Trustee obtained a default judgment against the company in the amount of $117,587.75, issued a Writ of Garnishment against the company’s bank, and recovered funds held in the company’s account in the amount of $28,875.34.

The Debtors objected to a fee application filed by Trustee’s counsel.  The objection did not contest the reasonableness of the compensation but argued the funds held by the Trustee were wrongfully obtained.

The Objection was overruled.  First, the Court held the objection was barred by the Rooker-Feldman Doctrine.  The Debtors, as officers and directors of the company, could have defended the Trustee’s lawsuit and made their state law arguments as to the alleged impropriety of the Trustee’s actions in state court, but did not.  They cannot later advance those theories in Bankruptcy Court to undo the state court judgment.

Second, the Court rejected the Debtors’ characterization of the garnishment as “de facto distribution” to the Trustee as a shareholder prohibited by Colorado law.  The Trustee never was, and never became, an officer or director of the company.  Under Colorado law, a shareholder, as an owner, does not owe a fiduciary duty to creditors.  The fiduciary duty is imposed upon the officers and directors, who are empowered by state law to run the day-to-day operations of the entity and make the business decisions.  The Trustee commenced litigation against the company to collect a debt in his capacity of a creditor.  The Debtors remained the officers and directors of the company and retained the authority to defend the lawsuit.  

Finally, because the bankruptcy estate is insolvent, the Court found the Debtors lacked standing to object to the fee application.

In re Charles Samuel Vinson and Renee Ann Vinson, Case No. 19-10544 JGR Order entered December 5, 2019 (reasonable attorney’s fees for purposes of determining secured claim subject to objection) 12/05/2019
Over the span of ten years, the debtors owned two parcels of real property which secured three notes held by the bank. During that time, the debtors and the bank engaged in various legal proceedings as a result of the debtors’ inability to make payments on the notes. After a short sale of one of the properties and the payoff of another of the notes through a cured foreclosure action, all that remained was one note secured by a first deed of trust in the debtors’ principal residence, from which the debtors also operated their businesses. The note provided that the bank was entitled to reasonable attorney’s fees incurred to protect its security interest in the property. 
 
The debtors filed this Chapter 13 case approximately one year after they received a discharge under Chapter 7 (i.e., a “Chapter 20” case). The bank filed a proof of claim asserting a cure amount of approximately $120,000, of which about $60,000 was for pre- and post-petition attorney’s fees and expenses that the bank allegedly incurred in enforcing the note at issue, and another $60,000 was for default interest, late fees, escrow advances, and other allowable expenses. The debtors objected to the bank’s claim, arguing that the $60,000 attributable to the bank’s attorney’s fees was unreasonable. The bank objected to confirmation and requested dismissal of the case under the Flygare/Pioneer Bank factors. 
 
The Court held an evidentiary hearing on the objections to the bank’s claim and confirmation. The Court received documentary evidence and testimony which established that the bank incurred attorney’s fees for the following: the debtors’ Chapter 13 case and discovery conducted in connection therewith; the debtors’ Chapter 7 case; and four foreclosure actions on the various notes secured by the property, of which three were cured by the debtors and the fourth was contested by the debtors on the basis of the amount of the bank’s attorney’s fees. 
 
The Court found that Mr. Vinson credibly testified at the hearing, and it concluded that the debtors’ case and proposed plan did not violate the Flygare/Pioneer Bank factors and were proposed in good faith. The Court reasoned that, although the debtors historically had considerable difficulty paying the bank, they were entitled to pursue their legal rights in contesting the foreclosure, entitled to dispute the amount of the bank’s attorney’s fees and expenses, entitled to attempt to retain the property, and entitled to file bankruptcy. The Court noted that the debtors legitimately sought a judicial determination of the amount of the bank’s claim.
 
The Court undertook an a review of the bank’s 134 pages of legal fee statements and a summary thereof. The Court noted that the bank’s submissions were deficient in several respects, including, inter alia, a math error that took several errors to uncover, lumped attorney time, lumped categories, categories combined between the three notes, and random allocation of fees between categories, all of which caused the Court to spend hours to decipher a reasonable fee. 
 
The Court separated the legal fee statements into three categories—(i) Chapter 7, (ii) note at issue, (iii) post-petition—and analyzed the fees using L.B.R. 2016-1 and the lodestar factors as a guide. The Court excluded all legal fees that pertained to other notes and/or the previously-sold property, and it applied an adjusted, blended hourly rate to determine a reasonable amount for the remaining fees. The Court granted the debtors’ objection to the bank’s claim in part and reduced the bank’s attorney’s fees to $8,900 and awarded expenses in the amount of $2,800.85, for a total of $11,700.85.

Judge Thomas B. McNamara (TBM)

In re Kevin Lewis Bell, Bankruptcy Case No.19-20596 TBM, Docket No. 30 (Bankr. D. Colo. Apr. 23, 2020). 04/23/2020
The Chapter 7 Trustee moved to dismiss a Debtor’s bankruptcy case for the Debtor’s failure to present a Social Security Card at the Section 341 Meeting of Creditors.  The Debtor appeared and provided a Colorado Driver’s License and a self-prepared tax return but did not bring her Social Security Card.  The Debtor offered to provide it shortly thereafter.  The Chapter 7 Trustee, who had already continued the Section 341 Meeting of Creditors once, refused.  The Chapter 7 Trustee did not examine the Debtor and told the Debtor that the only option was dismissal.  In response to the Chapter 7 Trustee’s motion to dismiss, the Debtor provided her Social Security Card to the Chapter 7 Trustee.  
 
The Court analyzed the applicable Sections of the Bankruptcy Code, including Sections 341, 343 and 521, and concluded that the Bankruptcy Code does not include any requirement that a debtor provide proof of a Social Security Number at the Section 341 Meeting of Creditors.  Rather, such requirement is contained in Fed. R. Bankr. P. 4002(b)(1)(B).  The Debtor failed to strictly comply with that Rule.  However, exercising its discretion, the Court determined that the Social Security Card snafu was not sufficient cause for dismissal under Section 707(a)(1). 

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