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AVOIDANCE

In re Carter, (01-50187, Adv. No. 01-05039, January 28, 2002) - Court denied summary judgment to chapter 13 trustee seeking to avoid creation of a lien as a preference. Trustee failed to provide any information as to the debtor’s assets and liabilities, so the Court was unable to determine whether the fifth element of a preference action–creditor is better off than it would be in a hypothetical liquidation–was satisfied. At a minimum, the Court needs sufficient facts to determine whether the case would pay a 100% dividend.

CASE ADMINISTRATION

In re Benedict, (03-41438, January 12, 2004) - A court order that could be set aside for improper service of process was a liquidated debt for purposes of Chapter 13 eligibility under section 109(e) because the determination to set aside the order can only be made with reference to specific legal criteria.

In re Gebhart, (99-50421, November 28, 2000) - Adopting the "functional nexus" test for determining whether an item is a "household good" for the purpose of lien avoidance.

In re Jackson, (03-43997, January 21, 2005) - The Chapter 13 trustee has not violated 28 U.S.C. § 586 by basing her percentage fee on payments received from the debtor rather than on payments disbursed to creditors. The statute is silent on the question, and the long standing policy promulgated by the Executive Office of the United States Trustee is highly persuasive.

In re Lott, (98-50320, September 24, 2001) - Chapter 13 debtor whose plan was completed and who was discharged, but whose case had not yet been closed, sought to amend his schedules to add a medical malpractice claim in order to avoid a judicial estoppel defense on the claim in state court. The Court denied debtor’s motion to amend because debtor had a right to amend without leave of Court under Federal Rule of Bankruptcy Procedure 1009(a).

In re Mizell, (00-50270, October 13, 2000) - If unsecured second lienholder can prove collateral's value exceeds first secured creditor's stipulated security interest, difference in collateral's stipulated value and proven value is treated as a secured interest of second lienholder.

In re Sanders, (03-41176, December 5, 2003) - A jury verdict for a specific dollar amount that had not been reduced to judgment was a liquidated debt for purposes of Chapter 13 eligibility under section 109(e) because the trial judge did not have unfettered discretion to change the amount of the verdict.

CHAPTER 13 PLANS

In re Carver, (05-51909, March 6, 2006) - Claims falling within the scope of the hanging paragraph to § 1325(a) are not secured claims for purposes of treatment under § 1325(a)(5). However, because Congress did not intend to punish such claimholders, the claims must receive the greater of (1) the full amount of the claim without interest; or (2) the amount the creditor would receive if the claim were bifurcated and crammed down.

In re Mizell, (00-50270, October 13, 2000) - If unsecured second lienholder can prove collateral's value exceeds first secured creditor's stipulated security interest, difference in collateral's stipulated value and proven value is treated as a secured interest of second lienholder.

CLAIMS

In re Morris (01-41877, December 10, 2002) - When a secured creditor repossesses and sell collateral following a grant of stay relief, it must file an amended claim. If the creditor fails to do so within the time period prescribed by Court order, that order will provide for designation of the claim as fully satisfied.

In re Smith (02-41629, Adv. No. 03-04015, August 15, 2003) - Debtor sought relief for creditor’s failure to disclose that it would seek payment of attorney fees incurred between the date of filing and the date of confirmation. The Court dismissed the complaint for failure to state a claim because the creditor had not yet demanded payment of more than the amount actually disclosed on the proof of claim.

In re Tonner (01-42216, February 26, 2002) - Pursuant to Bankruptcy Rules 3302(c)(1) and 3004, a debtor’s time to file a proof of claim on behalf of a government creditor begins running on the day after the first date set for the 341(a) meeting and extends to 210 days following entry of the order for relief.

CONTRACTUAL RELATIONS

DEBTOR and CREDITOR RIGHTS

In re King, (99-50503, Adv. No. 01-05003, May 14, 2002) - Having determined that it has the power to rule on the constitutionality of provisions of the Bankruptcy Code, the Court declared that 11 U.S.C. § 106(a), which abrogates the sovereign immunity of governmental units, is unconstitutional as applied to the states.

DISCHARGE

In re Gillis, (97-50634, August 7, 2000) - Discharge of Debtor's half-million dollar tax liability to the Internal Revenue Service is denied. In refusing to allow an IRS officer to enter his residence to inventory and seize his personal property in satisfaction of Debtor's tax arrearage, Debtor's conduct was an "affirmative act," as contemplated in In re Griffith, 206 F.3d 1389 (11th Cir. 2000) (en banc), resulting in denial of Debtor's discharge pursuant to 11 U.S.C. Section 523(a)(1)(C).

In re Horton, (99-20846, June 16, 2000) - Question as to whether Debtor "knowingly or fraudulently" omitted items from his schedules, and is thus subject to having his discharge denied for making a false oath pursuant to Section 727(a)(4)(A) for making a false oath or account, is ultimately turns on the credibility of the Debtor, and is accordingly a question for the finder of fact; value of property that Debtor alleges is irrelevant to determination of the property's materiality to the estate for purposes of denying discharge pursuant to Section 727(a)(4)(A).

In re Moody, (00-50114, Adv. No. 01-05002A, October 5, 2001) - Debt of automobile franchise was dischargeable under Section 523(a)(6) in the sole shareholder’s individual bankruptcy because Debtor did not intend to inflict injury on creditor. Furthermore the debt, which was caused by selling cars out of trust, could not be attributed to Debtor because he was not an active participant in creating the out-of-trust position.

In re O'Steen, (99-50838, April 11, 2001) - Court found that Chapter 7 Debtor was reckless in his actions but did not intend to deceive creditor and thereby denied creditor’s objection to discharge under 11 U.S.C. § 523(a)(2)(A) and 11 U.S.C. § 523(a)(2)(B).

EXECUTORY CONTRACTS AND LEASES

In re Williams, (03-40058, May 5, 2003) - Creditor who leased a truck to the debtor sought stay relief on the ground his interest was not adequately protected. The Court agreed because the debtor could not meet the requirements for assuming the lease. Specifically the debtor was unable to cure his nonmonetary defaults.

EXEMPTIONS

In re Carelock, (05-51431, January 13, 2006) - A debtor may use the motor vehicle exemption to exempt cash proceeds from the prepetition loss of a motor vehicle.

In re Hiers, (03-51446, September 26, 2005) - The enhanced $20,000 homestead exemption for spouses applies only when the residence is titled in only one spouse and that spouse is the debtor. When the property is jointly owned, the debtor is only entitled to a $10,000 exemption.

In re Page, (02-51307, January 6, 2003) - The debtor claimed a homestead exemption pursuant to O.C.G.A. § 44-13-100(a)(1) in certain real property in which she had a security interest. The exemption requires that the property be used as the debtor’s residence. In this case, it was uncontested that the debtor did not reside on the property claimed as exempt, thus the Court sustained the trustee’s objection to the exemption.

PROCEDURE

In re Moody, (00-50114, April 13, 2001) - Secondary lien holder filed a complaint against the primary lien holder of land owned by Chapter 7 Debtor alleging that primary lien holder was only allowed to seek reasonable attorney fees in its foreclosure sale of the land under 11 U.S.C. § 506(b) instead of under Ga. Code Ann. § 13-1-11, however Court determined that it lacked jurisdiction to hear the case because Trustee had abandoned the land and Debtor no longer had any remaining interest in the land.

PROFESSIONAL

In re Atkins, (01-40125, December 23, 2005) - The debtor’s personal injury attorney failed to satisfy the rules of professional conduct by failing to perfect service of the complaint failing to give the debtor sufficient information to make an informed decision regarding settlement of her case, and pressuring the debtor to settle the case.

In re Jackson, (03-43997, January 21, 2005) - The Chapter 13 trustee does not violate § 586 by basing her commission on a percentage of the money paid into the plan rather than on a percentage of money she disburses.

In re Moody, (00-50114, April 13, 2001) - Secondary lien holder filed a complaint against the primary lien holder of land owned by Chapter 7 Debtor alleging that primary lien holder was only allowed to seek reasonable attorney fees in its foreclosure sale of the land under 11 U.S.C. § 506(b) instead of under Ga. Code Ann. § 13-1-11, however Court determined that it lacked jurisdiction to hear the case because Trustee had abandoned the land and Debtor no longer had any remaining interest in the land.

In re Thornton, (04-51703, August 8, 2005) - The debtor’s personal injury attorney failed to satisfy the rules of professional conduct by conducting his representation without any direct communication with the debtor and settling the case without the debtor’s authority.

In re Walker, (04-50665, December 1, 2004) - The so-called "no-look" fee set forth in Local Rule 2002-1 does not set a fee, but acknowledges that $1,500 typically will be a reasonable fee in a Chapter 13 case. The debtor’s attorney is obligated to request a lesser fee when appropriate.