In this chapter 7 case, the Court ruled on the appropriate manner to object to the form of order submitted for the Court's signature, and in what instances a Trustee may surcharge exemptions pursuant to 11 U.S.C. § 522(k). The Trustee filed several motions attempting to modify the substance of a prior ruling by this Court, and to compel the turnover of additional records and funds, all after having submitted the Trustee's Final Report. The Court concluded that an objection as to the form of the order is not the mechanism by which the substance of the Court's prior ruling should be challenged. Additionally, the Court held that the Trustee could not surcharge the Debtor's exempted wages under § 522(k) after collecting those unpaid wages from the Debtor's employer, without a showing that there has been an avoidable transfer. The Court finally concluded that it had appropriately ruled on the surcharge issue at a prior hearing, where albeit the Trustee had not formally pled the issue it had nevertheless argued the issue at a hearing on the Debtor's objection to the Trustee's final report.
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Title: In re Lazerus | Date: Jul-6-2009 | Status: UNPUBLISHED (Judge Thurman) | Case(s): 05-34150
Title: In re 3H River Turf Farm | Date: Jun-8-2009 | Status: UNPUBLISHED (Judge Thurman) | Case(s): 08-22543
In this chapter 7 case, the issue before the Court was whether the Court should take into account all of the liens and encumbrances against real property when considering a motion for relief from stay under 11 U.S.C. § 362(d)(2), or just those liens and encumbrances of the moving party and any senior lienholders. The Court held that the word “equity” in section 362(d)(2) meant that the Court must consider all liens and encumbrances against real property, not just those of the movant and the senior lienholders. The Court granted relief from stay because after subtracting the total amount of the secured encumbrances from the total value of the real property as calculated in the Trustee's Appraisal, there was no equity in the property.
Title: Wilburgene v. Kwon (In re Wilburgene) | Date: May-27-2009 | Status: PUBLISHED (Judge Thurman) | Case(s): 08-02101
In this adversary proceeding, the Plaintiff Wilburgene LLC (the “LLC”) and certain defendants filed cross-motions for summary judgement seeking the determination of whether those defendants held a valid trust deed on the Plaintiff's property that was granted by a purported member of the Plaintiff to secure a personal loan. The Plaintiff argued that the grantor was not a member of the LLC, and could not encumber the its property. It further claimed that even if the grantor were considered a member, his actions could not bind the Plaintiff because they were not in the “ordinary course of the company business” as required by § 48-2c-802(1) of the Utah Code. The Court concluded that the grantor was a member of the LLC at the time the trust deed was granted, he had authority to sign the trust deed, and the exception contained subsection (3) rather than the general rule in subsection (1) of § 48-2c-802 governed. The Court held that under § 48-2c-802(3), the trust deed would be conclusive in favor of the defendants if they gave value without knowledge of the grantor's lack of authority. Although the Court determined that the defendants did give value in exchange for the trust deed, it held that there was a genuine dispute of material fact as to whether they had knowledge of the grantor's lack of authority. That issue was, therefore, reserved for trial.
Title: In re Timothy | Date: May-12-2009 | Status: UNPUBLISHED (Judge Mosier) | Case(s): 08-28332
Chapter 13 Debtors' Official Form 22C reflected Current Monthly Income of $6,181.31 which exceeded the median family income for a household of the same size in Utah. The Debtors' monthly Disposable Income reflected on Form 22C was -$188.70 (negative $188.70). Trustee objected to confirmation arguing that because this is an above-median income case, the applicable commitment period requires 60 monthly payments under § 1325(b)(4)(A)(ii)(II). Debtors' Schedules I and J disclosed total monthly income of $4,910.00 and total monthly expenses of $4,780.00, resulting in Schedule J monthly net income of $130.00. Debtors' plan proposed payments of $130.00 per month for so long as necessary to return $1,750.00 to non-priority unsecured creditors. The court held; (1) when a debtor's Form 22C Disposable Income is negative, in order for the debtor to propose a confirmable chapter 13 plan, projected disposable income under § 1325(b)(1)(B) may be calculated using Schedules I and J, and (2) when a debtor's Current Monthly Income is above the applicable state median income the "applicable commitment period" is defined by § 1325(b)(4) and is 60 months in all instances. The Court also held that when debtors include social security income to calculate a positive projected disposable income, all of the debtors' projected disposable income, including any amount attributable to social security income, to be received in the applicable commitment period must be applied to make payments under the chapter 13 plan.
Title: Jubber v. Sleater (In re Bedrock Marketing) | Date: Apr-27-2009 | Status: PUBLISHED (Judge Thurman) | Case(s): 08-02077
This was a hearing on a motion for summary judgment, where the Court considered whether to strike Defendant's declarations and to grant Plaintiff's motion for summary judgment based on the Defendant's default on two promissory notes held by the Debtors. The Court concluded that the majority of the statements contained in declarations constituted inadmissible hearsay, parole evidence, lack of personal knowledge, and inappropriate legal conclusions, and were, therefore, stricken. Relying on sections 70A-3-104 and 70A-3-303 of the Utah Code, the Court concluded that the certain promissory notes were negotiable instruments, that the Defendant was their “maker” under Utah law, and that antecedent debt was sufficient consideration for the notes. Accordingly, the Court granted the Trustee's motion for summary judgment.
Title: In re Christensen | Date: Mar-31-2009 | Status: PUBLISHED (Judge Thurman) | Case(s): 08-02223
The chapter 7 trustee sought to reopen the Debtors' case and revoke their discharge under 11 U.S.C. § 727(d)(2). Although the request appeared untimely under § 727(e)(2), the Trustee argued that the case was never properly closed pursuant to § 350, and even it was, there are proper basis for tolling the deadlines in § 727(e)92) because the Debtors had fraudulently concealed assets of the estate. The Court concluded that the case was properly closed pursuant to § 350(a), and equitable tolling did not apply to extend the deadlines in § 727(e). Therefore, the Trustee's claims under §727(d)(2) were time barred, and the request to revoke the Debtors' discharge was denied.
Title: In re Garner | Date: Jan-6-2009 | Status: PUBLISHED (Judge Thurman) | Case(s): 08-24899
In this chapter 13 case, the issue before the Court was whether a plan that proposed to bifurcate a secured claim under 11 U.S.C. § 506(a)(1) for a vehicle purchased within 910 days, and that was not objected to by the creditor, may be confirmed under 11 U.S.C. § 1325(a). The Debtors argued that Citizens Auto Finance's failure to object to the bifurcation of its claim in their chapter 13 plan constituted acceptance of the plan. The Bankruptcy Abuse Prevention and Consumer Protection Act, however, amended § 1325 to give special protection to creditors who finance automobile transactions that occur within 910 days prior to the debtor's filing for chapter 13 relief. The Court concluded that the requirements of § 1325(a) are “clearly mandatory,” and where a plan violates the hanging paragraph of § 1325(a), it cannot be confirmed even if the creditor does not object to the plan. Accordingly, the Court concluded that the hanging paragraph of § 1325(a) applied in this case, and the Debtors could not bifurcate Citizens Auto Finance's claim pursuant to § 506. Therefore, confirmation of the Debtors' plan was denied.
Title: In re Parker | Date: Aug-15-2008 | Status: PUBLISHED (Judge Thurman) | Case(s): 99-31207
The court determined that a default judgment entered 7 years ago awarding the debtor sanctions against a corporate creditor was void because the debtor failed to properly serve the creditor with the sanctions motion and notice of hearing. The Court determined that Bankruptcy Rule 7004(b)(3) required the debtor to direct her motion and notice of hearing to an officer or an authorized agent of the creditor. Because the motion and the notice of hearing was only sent to a P.O. Box or a street address, and did not identify an officer or a registered agent of the creditor, service was inadequate. Accordingly, when the creditor moved to reopen the case and vacate the judgment, the court concluded that cause existed to grant both motions.
Title: Distad v. United States of America (In re Distard) | Date: Aug-8-2008 | Status: PUBLISHED (Judge Clark) | Case(s): 07-2047
Debtor filed a number of bankruptcies. In the Debtor's most recent bankruptcy, he received a Chapter 7 discharge. After receiving the Chapter 7 discharge, Debtor's wages continued to be garnished, and tax liens were filed on his property by the IRS. Debtor argued that his tax debts for 1992 and other years had been discharged in the Chapter 7 bankruptcy and that the IRS had violated his discharge injunction under § 524(a). The IRS conceded that Debtor's tax debts from prior years had been discharged, but argued that Debtor's 1992 tax debt had not been discharged because equitable tolling (triggered by the automatic stay imposed by the intervening bankruptcies) prevented the 3 year period under § 507(a)(8)(A)(I) from running. The Court ruled that under Young v. United States, 535 U.S. 43 (2002), equitable tolling prevented the 3 year period from running, and that Debtor's 1992 taxes were not discharged. With respect to the prior year's tax debts, the Court found that no violation of Debtor's discharge injunction could be found with respect to the IRS's efforts to collect discharged tax debts prior to Young v. United States, but after Young v. United States, the IRS efforts to collect the discharged debt was a knowing and willful violation of Debtor's discharge injunction.
Title: In re Espinoza | Date: Aug-1-2008 | Status: PUBLISHED (Judge Thurman) | Case(s): 08-20778
In this chapter 13 case, the Court considered whether a plan that defers the start of equal monthly payments to a secured creditor beyond confirmation and proposes to pay adequate protection payments of lesser amounts in the interim complies with 11 U.S.C. § 1325(a)(5)(B)(iii)(I). CitiFinancial Auto Corporations objected to confirmation of the plan, arguing that it failed to provide for equal monthly payments in an amount sufficient to adequately protect its interests during the term of the plan. Relying on the reasoning of In re Denton, 370 B.R. 441 (Bankr. S.D. Ga. 2007) and In re Sanchez, 384 B.R. 574 (Banrk. D. Or. 2008), the Court concluded that the Debtor's plan did not comply with chapter 13's equal monthly payment requirement. The Court explained that the term “periodic payments” in § 1325(a)(5)(B)(iii) referred to all regularly-recurring post-confirmation payments to be made to a secured creditor such as CitiFinancial. It follows, then, that unless CitiFinancial agrees otherwise, it must receive equal monthly payments beginning with the first post-confirmation distribution and continuing until its claim is paid in full.