In re: J.J. Re-Bar Corp.
Decided: 6/24/2011
No. 09-60054
Circuit Judge McKeown for the Court; Circuit Judge Paez and Fifth Circuit Court Judge Reavley
Full Text: http://www.ca9.uscourts.gov/datastore/opinions/2011/06/24/09-60054.pdf
J.J. Re-Bar Corporation did not pay employment taxes, a large part of which were income and social security taxes that the corporation withheld from employee paychecks and held in trust for the government. In January 1998, the corporation filed for Chapter 11 Bankruptcy, submitted a plan of reorganization and continued operations as a debtor-in-possession. At the same time, the IRS was in extensive auditing of the corporation. In 2002 the IRS issued a bill to J.J. Re-Bar for unpaid payroll taxes, fraud penalties, and interest, and the corporation began to make monthly payments. In 2007 the IRS informed the Skokan family, officers of the corporation, about a Trust Fund Recovery Penalty issued against them. Under 26 U.S.C. § 6672, the IRS may recover this penalty against individual officers of a corporation. J.J. Re-Bar filed a motion to enjoin the IRS from collecting the penalty arguing that because the corporation was the primary obligor on the underlying trust-fund tax obligation, the collection from the Skokans violated the express terms of Article X, which provided for the discharge of all debts to which J.J. Re-Bar was the “primary obligor.” The Court affirmed the ruling of the Bankruptcy Court, holding that even though a corporation may be the primary obligor on its own tax obligation, the corporate officers are the primary obligors on trust-fund liabilities, as these liabilities are assessed independently under § 6672 for the officers own willful conduct. AFFIRMED.
Summary by Willamette Online writer Loren B. Roth.
© 2011 Hyrum M. Zeyer some rights reserved.
Disclaimer: By using the IdahoBankruptcyBlog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. The IdahoBankruptcyBlog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. The IdahoBankruptcyBlog site is not intended to be advertising and Hyrum M. Zeyer does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this site fails to comply with all laws and ethical rules of that state.
Wednesday, July 6, 2011
Wednesday, April 20, 2011
Debtor's may only claim standard expense allowances in Ch. 13
In re Thiel
United States Bankruptcy Court District of Idaho
Chief Judge Terry L. Myers
Decision Date: 3/1/2011
Ch. 13
Debtors have a montly disposable income of $1,102.70 and proposed a chapter 13 plan that does not pay their unsecured creditor's in full. Trustee objects per 1325(b)(1)(B) requiring projected disposable income to be paid to unsecured creditors.
The Court reviewed Lanning and Ransom. Debtors attempted to carry thier burden of proving the Plan confirmable by pointing to schedules I and J and arguing that they are proposing to pay thier "truley projected disposable income as shown. The court found that this does not meet the requirements of the code. Trustee's objection was sustained.
© 2011 Hyrum M. Zeyer some rights reserved.
Disclaimer: *By using the IdahoBankruptcyBlog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. The IdahoBankruptcyBlog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. The IdahoBankruptcyBlog site is not intended to be advertising and Hyrum M. Zeyer does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this site fails to comply with all laws and ethical rules of that state.
United States Bankruptcy Court District of Idaho
Chief Judge Terry L. Myers
Decision Date: 3/1/2011
Ch. 13
Debtors have a montly disposable income of $1,102.70 and proposed a chapter 13 plan that does not pay their unsecured creditor's in full. Trustee objects per 1325(b)(1)(B) requiring projected disposable income to be paid to unsecured creditors.
The Court reviewed Lanning and Ransom. Debtors attempted to carry thier burden of proving the Plan confirmable by pointing to schedules I and J and arguing that they are proposing to pay thier "truley projected disposable income as shown. The court found that this does not meet the requirements of the code. Trustee's objection was sustained.
© 2011 Hyrum M. Zeyer some rights reserved.
Disclaimer: *By using the IdahoBankruptcyBlog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. The IdahoBankruptcyBlog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. The IdahoBankruptcyBlog site is not intended to be advertising and Hyrum M. Zeyer does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this site fails to comply with all laws and ethical rules of that state.
When is a Debt Collector not a Debt Collector?
De Dios v. International Realty & Investments
Decided: 4/11/2011
No. 08-56288
Circuit Judge McKeown for the Court; Circuit Judges W. Fletcher and Clifton
Full Text HERE
DEBT COLLECTION LAW: For purposes of the Fair Debt Collection Practices Act, a collector is not a “debt collector” if collector sends a letter to a debtor, prior to the date of default, informing of funds due on a subsequent date, if the collector had a right to collect prior to the date the letter was sent.
De Dios began renting an apartment in 2001. Between late 2005 and June 2006, the apartment was in receivership held by International Realty and Investments, Inc. (“International”) who collected the rents. In 2006, a new landlord increased rents. De Dios initially paid under protest, and then ceased rent payments. In July 2006, multiple tenants, including De Dios, sued the original owner in state court over inter alia rent disputes. De Dios’ rent increase obligation was held in abeyance pending judicial resolution. The state court dismissed the claims. The original owner regained control in July 2007. In July 2007, International sent De Dios a letter claiming the balance for the past due rent from August 2006 forward, and stated payment was due by August 15, 2007. De Dios filed suit in federal court claiming International violated disclosure agreements under the Fair Debt Collection Practices Act (“FDCPA”). 15 U.S.C. § 1692. The district court granted International’s motion for summary judgment. The Ninth Circuit agreed, holding that International was not a “debt collector” under the FDCPA. The Court found that FDCPA excludes persons collecting a debt that was not in default at the time the debt was obtained by such person. The Court found that the debts owed to International by De Dios were not in default on the date the letter was sent. The Court concluded that International was not a “debt collector” under FDCPA because it acquired the debt before it was due. The Court further affirmed $500 in vexatious litigation penalties and $12,000 in attorney fees awarded to International. AFFIRMED.
Summarized by Willamette Law Online writer Evan Barrickman
© 2011 Hyrum M. Zeyer some rights reserved.
Disclaimer: *By using the IdahoBankruptcyBlog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. The IdahoBankruptcyBlog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. The IdahoBankruptcyBlog site is not intended to be advertising and Hyrum M. Zeyer does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this site fails to comply with all laws and ethical rules of that state.
Decided: 4/11/2011
No. 08-56288
Circuit Judge McKeown for the Court; Circuit Judges W. Fletcher and Clifton
Full Text HERE
DEBT COLLECTION LAW: For purposes of the Fair Debt Collection Practices Act, a collector is not a “debt collector” if collector sends a letter to a debtor, prior to the date of default, informing of funds due on a subsequent date, if the collector had a right to collect prior to the date the letter was sent.
De Dios began renting an apartment in 2001. Between late 2005 and June 2006, the apartment was in receivership held by International Realty and Investments, Inc. (“International”) who collected the rents. In 2006, a new landlord increased rents. De Dios initially paid under protest, and then ceased rent payments. In July 2006, multiple tenants, including De Dios, sued the original owner in state court over inter alia rent disputes. De Dios’ rent increase obligation was held in abeyance pending judicial resolution. The state court dismissed the claims. The original owner regained control in July 2007. In July 2007, International sent De Dios a letter claiming the balance for the past due rent from August 2006 forward, and stated payment was due by August 15, 2007. De Dios filed suit in federal court claiming International violated disclosure agreements under the Fair Debt Collection Practices Act (“FDCPA”). 15 U.S.C. § 1692. The district court granted International’s motion for summary judgment. The Ninth Circuit agreed, holding that International was not a “debt collector” under the FDCPA. The Court found that FDCPA excludes persons collecting a debt that was not in default at the time the debt was obtained by such person. The Court found that the debts owed to International by De Dios were not in default on the date the letter was sent. The Court concluded that International was not a “debt collector” under FDCPA because it acquired the debt before it was due. The Court further affirmed $500 in vexatious litigation penalties and $12,000 in attorney fees awarded to International. AFFIRMED.
Summarized by Willamette Law Online writer Evan Barrickman
© 2011 Hyrum M. Zeyer some rights reserved.
Disclaimer: *By using the IdahoBankruptcyBlog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. The IdahoBankruptcyBlog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. The IdahoBankruptcyBlog site is not intended to be advertising and Hyrum M. Zeyer does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this site fails to comply with all laws and ethical rules of that state.
Monday, March 21, 2011
In Re Beach
U.S. Bankruptcy Court District of Idaho
Justice Jim D. Pappas
Case No. 08-40013-JDP
Decision Date: 2/25/2011
Chapter 7
Full Text HERE
Debtors entered into a mortgage agreement with Bank of America. Upon non payment of the mortgage, Bank of America proceeded with a non-judicial foreclosure. Debtors filed a state court claim asserting the bank violated the Truth in Lending Act (TILA) and Idaho Consumer Protection Act and received a temporary restraining order staying the banks foreclosure actions. The case was removed to federal district court and referred to the Bankruptcy Court. At the time of removal, Debtors filed for chapter 7 relief. The Bank subsequently moved to dismiss due to debtor’s lack of personal jurisdiction and failure to state a claim for relief under Fed. R. Civ. P. 12(b)(1) and (b)(6).
The Court accepted the allegations of the complaint as true according to precedent that allegations are to be taken as sufficient on their face. The Court concluded that the Debtors did not plead sufficient facts to allow the Court to find a plausible claim and Debtor’s ICPA claim was dismissed. The Court held the Banks non-judicial foreclosure is an “action to collect a debt” and that the statute of limitations began to run at the time of the non-judicial foreclosure. Further, because Debtor’s raised the TILA claim as a defense to Banks debt collection action the TILA 1 year statute of limitations does not apply and the allegations were found timely. The Court concluded that both Debtors and Trustee have prudential standing to make a TILA claim against the bank.
© 2011 Hyrum M. Zeyer some rights reserved.
Disclaimer: By using the IdahoBankruptcyBlog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. The IdahoBankruptcyBlog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. The IdahoBankruptcyBlog site is not intended to be advertising and Hyrum M. Zeyer does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this site fails to comply with all laws and ethical rules of that state.
U.S. Bankruptcy Court District of Idaho
Justice Jim D. Pappas
Case No. 08-40013-JDP
Decision Date: 2/25/2011
Chapter 7
Full Text HERE
Debtors entered into a mortgage agreement with Bank of America. Upon non payment of the mortgage, Bank of America proceeded with a non-judicial foreclosure. Debtors filed a state court claim asserting the bank violated the Truth in Lending Act (TILA) and Idaho Consumer Protection Act and received a temporary restraining order staying the banks foreclosure actions. The case was removed to federal district court and referred to the Bankruptcy Court. At the time of removal, Debtors filed for chapter 7 relief. The Bank subsequently moved to dismiss due to debtor’s lack of personal jurisdiction and failure to state a claim for relief under Fed. R. Civ. P. 12(b)(1) and (b)(6).
The Court accepted the allegations of the complaint as true according to precedent that allegations are to be taken as sufficient on their face. The Court concluded that the Debtors did not plead sufficient facts to allow the Court to find a plausible claim and Debtor’s ICPA claim was dismissed. The Court held the Banks non-judicial foreclosure is an “action to collect a debt” and that the statute of limitations began to run at the time of the non-judicial foreclosure. Further, because Debtor’s raised the TILA claim as a defense to Banks debt collection action the TILA 1 year statute of limitations does not apply and the allegations were found timely. The Court concluded that both Debtors and Trustee have prudential standing to make a TILA claim against the bank.
© 2011 Hyrum M. Zeyer some rights reserved.
Disclaimer: By using the IdahoBankruptcyBlog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. The IdahoBankruptcyBlog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. The IdahoBankruptcyBlog site is not intended to be advertising and Hyrum M. Zeyer does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this site fails to comply with all laws and ethical rules of that state.
Friday, March 11, 2011
Civil Rule 60(b)(1) evaluated and no “excusable neglect” found because Debtor delayed for 7 months without explanation
In re Aeschbacker
U.S. Bankruptcy Court District of Idaho
Justice Jim D. Pappas
Case No. 09-40713-JDP
Decision Date: 2/15/2011
Chapter 7
Full Text HERE
Debtor filed a chapter 7 petition and did not list any interest in a Ford Escape. Debtor’s SOFA indicated a recent transfer of this vehicle to her mother and that Debtor’s mother paid off the auto loan and was now the sole owner. Debtor further indicated that she was in possession of the Escape, but that it was held for her mother. Trustee conducted a vehicle title search and found Debtor’s name listed on the Escape and commenced an adversary proceeding against Debtor’s mother to recover the vehicle. Debtor’s mother did not answer or respond to the motion. January 2010, a default judgment was entered directing the turn over of the Escape.
Debtor filed amended schedules claiming to be the co-owner of the Escape along with her mother and further claimed the vehicle as exempt. Trustee objected the exemption and neither Debtor nor her attorney responded. Subsequently the Court entered an order sustaining Trustee’s objection to the claim of exemption on February 2010.
December 2010, Debtor filed a Motion to Set Aside Default Judgment based on Civil Rule 60(b)(1) where a court may set aside an order for excusable neglect. The Trustee opposed this motion. In deciding whether a party has demonstrated excusable neglect the court employed factors listed in Pioneer: 1) the danger of prejudice to the debtor; 2) the length of delay and its potential impact on judicial proceedings; 3) the reason for the delay; and 4) whether the movant acted in food faith.
The Court found the first factor to weigh in favor of the Debtor because if the motion was denied the Escape would be sold and its proceeds distributed to creditors. The second factor weighed against the Debtor as the Court found as significant a seven month delay resulting from Debtor’s and counsel’s inaction. The Third factor also weighed against Debtor because the Debtor and counsel had no adequate explanation for the delay. The final factor the court gave Debtor and her attorney the benefit of the doubt that the delay was not a result of bad faith conduct. As a result of these Pioneer factors the court found for the Trustee and denied Debtor’s motion to set aside.
© 2011 Hyrum M. Zeyer some rights reserved.
Disclaimer: By using the IdahoBankruptcyBlog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. The IdahoBankruptcyBlog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. The IdahoBankruptcyBlog site is not intended to be advertising and Hyrum M. Zeyer does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this site fails to comply with all laws and ethical rules of that state.
U.S. Bankruptcy Court District of Idaho
Justice Jim D. Pappas
Case No. 09-40713-JDP
Decision Date: 2/15/2011
Chapter 7
Full Text HERE
Debtor filed a chapter 7 petition and did not list any interest in a Ford Escape. Debtor’s SOFA indicated a recent transfer of this vehicle to her mother and that Debtor’s mother paid off the auto loan and was now the sole owner. Debtor further indicated that she was in possession of the Escape, but that it was held for her mother. Trustee conducted a vehicle title search and found Debtor’s name listed on the Escape and commenced an adversary proceeding against Debtor’s mother to recover the vehicle. Debtor’s mother did not answer or respond to the motion. January 2010, a default judgment was entered directing the turn over of the Escape.
Debtor filed amended schedules claiming to be the co-owner of the Escape along with her mother and further claimed the vehicle as exempt. Trustee objected the exemption and neither Debtor nor her attorney responded. Subsequently the Court entered an order sustaining Trustee’s objection to the claim of exemption on February 2010.
December 2010, Debtor filed a Motion to Set Aside Default Judgment based on Civil Rule 60(b)(1) where a court may set aside an order for excusable neglect. The Trustee opposed this motion. In deciding whether a party has demonstrated excusable neglect the court employed factors listed in Pioneer: 1) the danger of prejudice to the debtor; 2) the length of delay and its potential impact on judicial proceedings; 3) the reason for the delay; and 4) whether the movant acted in food faith.
The Court found the first factor to weigh in favor of the Debtor because if the motion was denied the Escape would be sold and its proceeds distributed to creditors. The second factor weighed against the Debtor as the Court found as significant a seven month delay resulting from Debtor’s and counsel’s inaction. The Third factor also weighed against Debtor because the Debtor and counsel had no adequate explanation for the delay. The final factor the court gave Debtor and her attorney the benefit of the doubt that the delay was not a result of bad faith conduct. As a result of these Pioneer factors the court found for the Trustee and denied Debtor’s motion to set aside.
© 2011 Hyrum M. Zeyer some rights reserved.
Disclaimer: By using the IdahoBankruptcyBlog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. The IdahoBankruptcyBlog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. The IdahoBankruptcyBlog site is not intended to be advertising and Hyrum M. Zeyer does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this site fails to comply with all laws and ethical rules of that state.
Friday, February 18, 2011
Transfers avoided and discharge denied due to fraudulent transfers
In re Wheeler
U.S. Bankruptcy Court District of Idaho
Chief Justice Terry L. Myers
Case No. 08-02835-TLM
Decision Date: 2/11/2011
Chapter 7
Full Text HERE
Debtor and his wife own and control 2 closely held entities: BW, LLC, managed by Debtor, and L&B, inc., majority owner is Debtor’s wife. Debtor filed an individual petition for relief under Chapter 13 and later converted it to a Chapter 7.
The chapter 7 Trustee sought to avoid transfers as fraudulent pursuant to section 548. The Trustee bears the burden of proving the transfer occurred within 2 years and was made with actual intent to hinder, delay or defraud creditors. Courts look to the circumstances surrounding the transfer to determine actual intent to hinder, delay, or defraud.
The Court found a quitclaim deed fraudulent as it was recorded 4 months prior to Debtor’s filing bankruptcy. The Court found actual intent to hinder, delay or defraud creditors because the transfer was between a married couple, Debtor was defending against a lawsuit at the time of transfer, transfer was only on paper, Debtor received no consideration, Debtor retained possession and used of the property, and Debtor failed to disclose the transfer on either of Debtor’s original or amended SOFA. Trustee was allowed to avoid this transfer.
The Court allowed the Trustee to avoid as fraudulent a $10,000 transfer when Debtor deposited a check he received from services performed through BW into an L & B account. The Court found intent to hinder, delay or defraud creditors because Debtor had a close relationship with L & B, Debtor continued to exercise control over the money, and although debtor disclosed the $10,000 gift in his amended SOFA, there was no disclosure of the subsequent transfer to L & B in either the original or amended SOFA.
The Court allowed the Trustee to avoid as fraudulent the removal of his name from the certificates of title on 3 motorcycles. By removing his name from certificates of title the Debtor transferred his interest in the motorcycles. The Court found intent to hinder, delay or defraud creditors because the transfer occurred the day before the petition date, no consideration was given, a civil judgment was already entered against Debtor, and Debtor continued to exercise possession and control over the motorcycles.
The Court dismissed the Trustees attempt to avoid a transfer of vehicles from BW to L & B pursuant to section 548, essentially requesting the court to “pierce the veil” of a non-debtor entity- BW and for the equitable remedy of substantive consolidation of Debtor’s estate with that of a non-debtor- BW. The court found that the Trustee did not specifically plead substantive consolidation nor presented evidence sufficient to meet the requirements for such extraordinary relief.
The Court granted Trustee’s request for an order denying Debtor’s discharge under 727(a)(2)(A) because all the above transfers occurred within 1 year of the petition date and as discussed above each transfer was found with the intent to hinder, delay, or defraud creditors.
Debtor’s discharge was also denied under 727(a)(2)(B) when the court found the concealment of a post-petition lease transaction that was executed the day after Debtor filed his petition. The Court found intent to hinder, delay, or defraud creditors because this transaction was not in the ordinary course of business, the lease transaction was structured in an unusual way, and rental income was omitted from Schedule I.
© 2011 Hyrum M. Zeyer some rights reserved.
Disclaimer: *By using the IdahoBankruptcyBlog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. The IdahoBankruptcyBlog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. The IdahoBankruptcyBlog site is not intended to be advertising and Hyrum M. Zeyer does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this site fails to comply with all laws and ethical rules of that state.
U.S. Bankruptcy Court District of Idaho
Chief Justice Terry L. Myers
Case No. 08-02835-TLM
Decision Date: 2/11/2011
Chapter 7
Full Text HERE
Debtor and his wife own and control 2 closely held entities: BW, LLC, managed by Debtor, and L&B, inc., majority owner is Debtor’s wife. Debtor filed an individual petition for relief under Chapter 13 and later converted it to a Chapter 7.
The chapter 7 Trustee sought to avoid transfers as fraudulent pursuant to section 548. The Trustee bears the burden of proving the transfer occurred within 2 years and was made with actual intent to hinder, delay or defraud creditors. Courts look to the circumstances surrounding the transfer to determine actual intent to hinder, delay, or defraud.
The Court found a quitclaim deed fraudulent as it was recorded 4 months prior to Debtor’s filing bankruptcy. The Court found actual intent to hinder, delay or defraud creditors because the transfer was between a married couple, Debtor was defending against a lawsuit at the time of transfer, transfer was only on paper, Debtor received no consideration, Debtor retained possession and used of the property, and Debtor failed to disclose the transfer on either of Debtor’s original or amended SOFA. Trustee was allowed to avoid this transfer.
The Court allowed the Trustee to avoid as fraudulent a $10,000 transfer when Debtor deposited a check he received from services performed through BW into an L & B account. The Court found intent to hinder, delay or defraud creditors because Debtor had a close relationship with L & B, Debtor continued to exercise control over the money, and although debtor disclosed the $10,000 gift in his amended SOFA, there was no disclosure of the subsequent transfer to L & B in either the original or amended SOFA.
The Court allowed the Trustee to avoid as fraudulent the removal of his name from the certificates of title on 3 motorcycles. By removing his name from certificates of title the Debtor transferred his interest in the motorcycles. The Court found intent to hinder, delay or defraud creditors because the transfer occurred the day before the petition date, no consideration was given, a civil judgment was already entered against Debtor, and Debtor continued to exercise possession and control over the motorcycles.
The Court dismissed the Trustees attempt to avoid a transfer of vehicles from BW to L & B pursuant to section 548, essentially requesting the court to “pierce the veil” of a non-debtor entity- BW and for the equitable remedy of substantive consolidation of Debtor’s estate with that of a non-debtor- BW. The court found that the Trustee did not specifically plead substantive consolidation nor presented evidence sufficient to meet the requirements for such extraordinary relief.
The Court granted Trustee’s request for an order denying Debtor’s discharge under 727(a)(2)(A) because all the above transfers occurred within 1 year of the petition date and as discussed above each transfer was found with the intent to hinder, delay, or defraud creditors.
Debtor’s discharge was also denied under 727(a)(2)(B) when the court found the concealment of a post-petition lease transaction that was executed the day after Debtor filed his petition. The Court found intent to hinder, delay, or defraud creditors because this transaction was not in the ordinary course of business, the lease transaction was structured in an unusual way, and rental income was omitted from Schedule I.
© 2011 Hyrum M. Zeyer some rights reserved.
Disclaimer: *By using the IdahoBankruptcyBlog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. The IdahoBankruptcyBlog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. The IdahoBankruptcyBlog site is not intended to be advertising and Hyrum M. Zeyer does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this site fails to comply with all laws and ethical rules of that state.
Monday, January 31, 2011
Motion for Order for Allowance and Future Payment on Untimely Filed Claim denied because proof of claim did not meet timeliness requirement
In re Ashworth
Case No. 09-03648-TLM
Decision Date: 1/28/2011
Chapter 13
Debtors filed a chapter 13 petition with a Plan that stripped-off the second mortgage of the debtor’s residence held by HSBC Mortgage. The Plan was confirmed. The holder of the first position secured claim on the Debtor’s residence received relive from the 362(a) automatic stay and HSBC filed a “Motion for Order for Allowance and Future Payment on Untimely Filed Claim(s)” on the basis of “excusable neglect” but cited no support. Debtor’s and Chapter 13 Trustee objected. Trustee’s specifically objected to the motion and also requested an order that the late filed claim not be allowed.
HSBC argued that even if the motion is denied the Court should find the untimely claim “deemed allowed pursuant to section 502(a).” 502 speaks to whether a claim is deemed allowed but not to the issue of timeliness. Rule 3002(c) governs timeliness in chapter 13 cases and requires proof of claims be filed with in 90 days of the first date set for the 341(a) meeting to be timely filed. In this case HSBC’s proof of claim was filed outside this 90 day requirement. Trustee’s Objection was sustained.
Full decision HERE
Disclaimer: By using the IdahoBankruptcyBlog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. The IdahoBankruptcyBlog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. The IdahoBankruptcyBlog site is not intended to be advertising and Hyrum M. Zeyer does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this site fails to comply with all laws and ethical rules of that state.
© 2011 Hyrum M. Zeyer some rights reserved.
Case No. 09-03648-TLM
Decision Date: 1/28/2011
Chapter 13
Debtors filed a chapter 13 petition with a Plan that stripped-off the second mortgage of the debtor’s residence held by HSBC Mortgage. The Plan was confirmed. The holder of the first position secured claim on the Debtor’s residence received relive from the 362(a) automatic stay and HSBC filed a “Motion for Order for Allowance and Future Payment on Untimely Filed Claim(s)” on the basis of “excusable neglect” but cited no support. Debtor’s and Chapter 13 Trustee objected. Trustee’s specifically objected to the motion and also requested an order that the late filed claim not be allowed.
HSBC argued that even if the motion is denied the Court should find the untimely claim “deemed allowed pursuant to section 502(a).” 502 speaks to whether a claim is deemed allowed but not to the issue of timeliness. Rule 3002(c) governs timeliness in chapter 13 cases and requires proof of claims be filed with in 90 days of the first date set for the 341(a) meeting to be timely filed. In this case HSBC’s proof of claim was filed outside this 90 day requirement. Trustee’s Objection was sustained.
Full decision HERE
Disclaimer: By using the IdahoBankruptcyBlog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. The IdahoBankruptcyBlog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. The IdahoBankruptcyBlog site is not intended to be advertising and Hyrum M. Zeyer does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this site fails to comply with all laws and ethical rules of that state.
© 2011 Hyrum M. Zeyer some rights reserved.
Subscribe to:
Posts (Atom)