On the eve of foreclosure by a third party, Debtor and Creditor entered into an agreement wherein Creditor agreed to acquire the debt secured by Debtor's real property and bid in the full amount of the debt owed at foreclosure thereby leaving no deficiency claim. In return, Debtor agreed to not file bankruptcy. Shortly after the date of the agreement, another creditor put the Debtor into involuntary bankruptcy. Creditor eventually obtained relief from the automatic stay to proceed with foreclosure, but only after one million dollars worth of the property was sold to various third parties. Approximately $700,000 of the sale proceeds was placed in escrow. At the foreclosure sale, Creditor mistakenly bid-in an incorrect at auction by forgetting to take into account the $700,000 held in escrow. Both Creditor and Debtor claimed entitlement to the $700,000 held in escrow. Creditor filed an adversary proceeding seeking reformation of the foreclosure bid to correct the error. The Court, finding that equitable relief was available to Creditor only if the Court could place the parties in the status quo at the moment of the bid, ruled that: 1) Creditor would be permitted to rescind its incorrect bid and bid-in the correct amount, and 2) Creditor must compensate the Debtor and the insiders for the attorney fees and costs incurred by them as a result of Creditor's mistaken bid.
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Title: 25th Street Associates v. Union Square Associates (In re Union Square Associates) | Date: Jul-29-2008 | Status: PUBLISHED (Judge Clark) | Case(s): 07-2144
Title: Markus v. Fried (In re Geneva Steel) | Date: May-14-2008 | Status: PUBLISHED (Judge Clark) | Case(s): 05-2578
Defendants sought summary judgment arguing that the adversary proceeding brought to avoid a transfer was commenced more than 3 years after the petition and thereby barred under § 546(a)(1). Plaintiff, a Chapter 11 trustee appointed more than 3 years after the petition date filed a cross motion for summary judgment arguing that because of misleading information filed with the court by the debtor, and because of the lack of accurate information available to creditors of the estate, that equitably tolling should apply. The Court ruled that based upon the undisputed facts, creditors of the estate were never put on inquiry notice that a fraudulent transfer may have taken place, that creditors of the estate had exercised reasonable diligence and that equitable tolling would apply to the adversary proceeding.
Title: In re Andrews | Date: May-6-2008 | Status: PUBLISHED (Judge Thurman) | Case(s): 07-22924
The Court determined that the Debtors' entitlement to payments pursuant to the Economic Stimulus Act of 2008 were not property of the estate where the Debtors filed for bankruptcy on June 28, 2007.
Title: In re Godfrey | Date: Apr-21-2008 | Status: PUBLISHED (Judge Thurman) | Case(s): 07-24065
The Court in this case clarified the breadth of Utah's homestead exemption law as it applied to a pre-petition sale of a home. The Chapter 13 Trustee objected to the Debtor's claimed homestead exemption because the Debtor voluntarily transferred a portion of the proceeds derived from the sale of his home prior to filing, but failed to disclose the transfers on his initial Statement or Schedules. The Chapter 13 Trustee asserted that “proceeds” must be kept in their original form and not used to pay for other items in order to qualify for the homestead exemption under Utah law. The Chapter 13 Trustee further asserted that the Debtor's homestead exemption should be denied under bankruptcy law because the Debtor's voluntary transfers were concealed in violation of § 522(g). The Court determined that proceeds from the sale of a home need not be retained in their original form to qualify for the homestead exemption, and sale proceeds may be disbursed for other purposes without jeopardizing the exemption. The Court further determined that the Debtor's homestead exemption should be allowed because there was no evidence of fraudulent intent and, under the facts of this case, sufficient disclosure was made by the Debtor.
Title: In re Austin | Date: Feb-12-2008 | Status: PUBLISHED (Judge Clark) | Case(s): 07-22771
The Debtors purchased a van using Zions Bank to finance the purchase. Debtors traded in an older vehicle receiving a $2,500 trade-in credit and rolling over a $5,500 balance owed on the older vehicle into the financing of new vehicle. The net effect of the trade-in was for Zions to roll $3,000 of negative equity into the financing. After filing Chapt 13, the Debtor's objected to Zions' proof of claim arguing that the negative equity portion of the proof of claim was not entitled to purchase money interest treatment and therefore not protected from bifurcation by the "hanging paragraph" found under § 1325(a)(9). Zions introduced evidence at the hearing to the effect that rolling the negative equity into the financing was a necessary part of the transaction, that Debtors would not have financially qualified for the loan but for the negative equity financing, and that the negative equity financing was in fact used by the Debtors in conjunction with the purchase of the van. The Court found that Zions' financing met the criteria of Utah Code Annotated § 70A-9a-103(1)(b), and ruled that the entire transaction, including the negative equity financing, was entitled to purchase money interest status. Debtors' objection to Zions' proof of claim was denied.
Title: In re Burt | Date: Oct-24-2007 | Status: PUBLISHED (Judge Thurman) | Case(s): 07-23193
In this chapter 13 case, the issue before the Court was whether Ford Motor Credit held a purchase money security interest in the Debtor's vehicle. Ford Motor Credit filed an objection to the confirmation of the Debtors' proposed Chapter 13 plan on the basis that the Debtors' plan improperly crammed down Ford Motor Credit's secured claim in violation of 11 U.S.C. §1325(a). BAPCPA amended §1325 to give special protection to creditors who finance automobile transactions that occur within 910 prior to the debtors' filing for chapter 13 relief. This special protection is given to creditors that hold a purchase money security interest in the vehicle. The Court determined that Ford Motor Credit's entire claim, including the portion of the claim attributable to negative equity and costs associated with the purchase of the vehicle, qualified as a purchase money security interest and must be paid in full as a secured claim. Accordingly, the Court concluded that the hanging paragraph of §1325(a) applied in this case and the Debtor could not “cram down” Ford Motor Credit's claim pursuant to §506. Therefore, Ford Motor Credit's objection to confirmation was sustained and confirmation of the Debtor's plan was denied without prejudice.
Title: In re Carrillo | Date: Jul-25-2007 | Status: UNPUBLISHED (Judge Thurman) | Case(s): 07-20423
The Debtor filed a motion to reopen his case, vacate his discharge as to one creditor and allow the debtor to file a reaffirmation agreement between he and a secured creditor, and then reimpose the discharge. The Court determined that under sec. 524(c)(1), a reaffirmation agreement is not enforceable if it is entered post-discharge and denied the motion to reopen as granting the relief to vacate the discharge would be futile.
Title: In re Miller | Date: Jul-12-2007 | Status: PUBLISHED (Judge Boulden) | Case(s): 07-20270
Chapter 13 debtor attempted to comply with 11 U.S.C. § 521(a)(1)(B)(iv) by filing three of the four payment advices he received during the 60 days prepetition, arguing that the year-to-date information on the fourth payment advice constituted adequate “other evidence of payment” as to the information that would be contained on the missing third payment advice. The Court rejected the debtor's interpretation of the statute, holding that the plain language of § 521(a)(1)(B)(iv) is focused on the evidence received from an employer during the 60-day prepetition period rather than the payment received during that period. Further, evidence from the employer must be for the specific pay period, and a non-employer's extrapolation of what the pay advice might have shown using other data received from the employer is insufficient. The Court also rejected the debtor's alternative arguments that the automatic dismissal provision in § 521(i)(1) is unconstitutional both facially and as applied in the debtor's case as a violation of procedural due process. As such, the debtor's case was automatically dismissed by § 521(i)(1) on the 46th day after the petition was filed
Title: In re Martin | Date: May-9-2007 | Status: UNPUBLISHED (Judge Thurman) | Case(s): 07-20209
In this chapter 13 case, the Court was presented with the issue of whether the Debtors could deduct secured claim payments in calculating their Disposable Income and whether they had proposed their plan in good faith. The Debtors proposed to retain a boat and trailer both of which were unrelated to the debtors' business and were subject to secured claims which were proposed to be paid in full. The chapter 13 Trustee objected.The Court determined that under post-BAPCPA law, a debtor need not show that a proposed expense is "reasonably necessary" for the debtor's maintenance and support to comply with section 1325(b). The court held that under the terms of sections 707(b) and 1325(b), a debtor may claim deductions in calculating Disposable Income for any secured payments owing, regardless of whether those payments are reasonably necessary for a debtor's maintenance and support. However, the Court also determined that the debtors' proposal to retain the boat and trailer was not made in good faith and denied confirmation.
Title: In re George Love Farming | Date: Mar-23-2007 | Status: PUBLISHED (Judge Thurman) | Case(s): 06-20612
Interpreting In re Marrama, 127 S.Ct. 1105 (2007), the Court held that it has authority to deny a Motion to Convert a case from chapter 7 to 11 where the conversion is sought in bad faith. The Court held that the burden to show bad faith is on the parties objecting to the conversion, and applied the factors considered by the Tenth Circuit Court of Appeals in In re Nursery Land Dev., Inc., 91 F.3d 1414 (10th Cir. 1996) to determine whether bad faith exists in this case. The Court determined that bad faith had been established and denied the Motion to Convert.