New Cases For the Week of February 11, 2002 - February 15, 2002

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February 13, 2002

Case

Court

Holding

In re Cowan
(DBN Subscription Required)
6th Cir. BAP The bankruptcy court did not err in avoiding a lien on registered land due to the failure to note the lien on the certificate of title.
In re Parsons
(DBN Subscription Required)
8th Cir. The bankruptcy court correctly limited a debtor/real estate broker's share of commissions arising form prepetition contracts to appx. 9% of the the commissions.  Although the broker and her team worked hard postpetition to insure that the subject sales closed, the broker's personal time represented only 9%.

February 11, 2002

Case

Court

Holding

In re Francis
(DBN Subscription Required)
6th Cir. BAP A debtor's pre-petition conduct is but one element'" and that bankruptcy courts must look to the totality of the circumstances in determining a debtor's good faith in filing a chapter 13 petition and plan. 

Other criteria are: (1) the amount of the proposed payments and the amount of the debtor's surplus; (2) the debtor's employment history, ability to earn and likelihood of future increase in income; (3) the probable or expected duration of the plan; (4) the accuracy of the plan's statements of the debts, expenses and percentage repayment of unsecured debt and whether any inaccuracies are an attempt to mislead the court; (5) the extent of preferential treatment between classes of creditors; (6) the extent to which secured claims are modified; (7) the type of debt sought to be discharged and whether any such debt is non-dischargeable in Chapter 7; (8) the existence of special circumstances such as inordinate medical expenses; (9) the frequency with which the debtor has sought relief under the Bankruptcy Reform Act; (10) the motivation and sincerity of the debtor in seeking Chapter 13 relief; (11) the burden which the plan's administration would place upon the trustee; and, (12) whether the debtor is attempting to abuse the spirit of the Bankruptcy Code.

These factors can be supplemented with: (1) whether the debtor is attempting to abuse the spirit of the Bankruptcy Code; (2) that good faith does not necessarily require substantial repayment of the unsecured claims; (3) that the fact a debt is non-dischargeable under Chapter 7 does not make it non-dischargeable under Chapter 13; and (4) the fact that a debtor seeks to discharge an otherwise non-dischargeable debt is not, per se, evidence of bad faith but may be considered as part of the totality of the circumstances analysis.

In re Lane
(DBN Subscription Required)
6th Cir.  Modification of the rights of a totally unsecured homestead mortgagee is permitted by § 1322(b)(2).
 
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