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New Cases For the Week of September 25, 2000 - September
29, 2000
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September 29, 2000
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Case
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Court
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Holding
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| In
re Tamecki |
3rd Cir. |
When
a Chapter 7 debtor has been separated from his wife for several years,
and his divorce is "right around the corner," the bankruptcy
court does not err in dismissing the debtor's petition as a bad faith
filing where the debtor claimed $100,000 in homestead equity as exempt
as a tenant by the entirety, but debtor's unencumbered equity following
the divorce would be enough to pay creditors in full and leave debtor
with a surplus. |
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September 28, 2000
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Case
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Court
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Holding
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| In re Cobbins |
5th Cir. |
Under
Mississippi law, a mobile home situated on land not owned by the debtor
cannot be claimed as an exempt homestead. |
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September 27, 2000
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Case
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Court
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Holding
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| In
re Troutman Enterprises, Inc. |
6th Cir. BAP |
11
USC 1141 provides that all of the property of a reorganized debtor
revests with the debtor upon confirmation of a plan. Even
undisclosed assets revest pursuant to this rule. If a Chapter 11 case is
converted to Chapter 7 postconfirmation, the Chapter 7 estate does not
contain the assets which have revested with the debtor as a result of
confirmation.
An unscheduled life insurance policy which revested in
a reorganized debtor as a result of confirmation of the debtor's plan,
did not become part of the debtor's Chapter 7 estate when the case was
converted to Chapter 7 after confirmation. |
| In
re Troutman Enterprises, Inc. |
6th Cir. BAP |
When
a Chapter 11 debtor has had its case converted to Chapter 7
postconfirmation, the creditors entitled to payment under the confirmed
plan hold claims against the debtor as a result of rights arising from
the confirmed plan. Based on these claims, these creditors may
file an involuntary petition against the debtor even though there is a
concurrent Chapter 7 pending as a result of the conversion.
If a reorganized debtor defaults under a plan,
creditors have several options, including: (i) enforcing the plan terms
in any court of competent jurisdiction, (ii) moving to dismiss the case,
(iii) moving to convert the case, (iv) moving to require the
debtor to implement the plan, (v) moving to revoke confirmation.
A single petitioning creditor has standing to pursue
an appeal of an order dismissing an involuntary petition, even where the
other petitioning creditors do not participate in the appeal. |
| In
re Keeney |
6th Cir. BAP |
Even
though real property is titled in his parents' names, a debtor holds a
beneficial interest in such property when he lives in the property, pays
no rent, and a company controlled by him pays for the mortgage and
improvements on the property.
When legal title to property in which a debtor holds a
beneficial interest is held in the name of another, the continuing
concealment doctrine expends the one-year statute of limitations
contained in 11 USC 727 such that the debtor's continuing concealment of
his beneficial interest is deemed to have continued into the one-year
period preceding the bankruptcy.
A debtor's failure to schedule his beneficial interest
in property titled in the name of a third party is a valid basis for
denial of discharge under 11 USC 727(a)(4)(A). |
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September 26, 2000
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Case
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Court
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Holding
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| In
re Adair |
9th Cir. BAP |
A
Chapter 7 debtor has no duty to supplement information provided on her
schedules where the case has been closed and the trustee has requested
no such supplementation prior to closing.
A $430,000 settlement from a prepetition lawsuit which
was listed on the schedules with a value of $20,000 and characterized as
speculative belongs to the debtor, not the estate where the trustee
abandoned the lawsuit by operation of law when the case was closed three
years before. |
| In
re Bartelson |
9th Cir. BAP |
A
chapter 11 plan does not have a binding effect with respect to
nondischargeable debts of an individual debtor
A confirmed plan of reorganization setting forth a
payment plan governing a nondischargeable debt does not preclude the
holder of that nondischargeable debt from exercising collection rights
outside the plan, unless the plan also includes a provision specifically
restricting or enjoining such collection activity. (Overruling In re
Mercado, 124 Bankr. 799 (Bankr. C.D. Cal. 1991) |
| In
re Olson-Ioane |
9th Cir. BAP |
A
joint bankruptcy case may not be commenced by amending an individual
petition. |
| In
re Gerwer |
9th Cir. BAP |
As
a matter of common law, a debtor making a voluntary payment has the
right to instruct the payee how the payment should be allocated.
If the debtor waives that right by not including such instructions the
creditor has the right to apply the payment as he sees fit.
A payment by a Chapter 7 trustee is not a voluntary
payment by a debtor for the purposes of the above-stated rule.
In the absence of a contractual provision regarding
allocation, a Chapter 7 debtor who entered into a settlement agreement
with a creditor regarding a partially nondischargeable debt did not have
the right to "allocate" a dividend payment by his
Chapter 7 trustee to the nondischargeable portion of the debt. |
| In
re Bodenstein |
8th Cir. BAP |
When
a Chapter 13 case is converted to Chapter 7, the statute of limitations
for commencement of an avoidance action is not equitably tolled during
the pendency of the Chapter 13 case. |
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September 25, 2000
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Case
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Court
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Holding
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