Chapter 13 debtor may strip unsecured lien under Code § 1322(b)(2), but not § 506(d). Further, stripping an unsecured lien in Chapter 13 requires that debtor receive discharge. A lien cannot be avoided before the Chapter 13 debtor’s discharge is entered.
Archives for 2013
Is Social-Host Liability Non-Dischargeable under Code § 523(a)(6)?
In a recent Wisconsin cae, the Bankrupcy Court said no. The creditors failed to show that the debtor’s potential social-host liability for the death of a partygoer in an automobile accident was the result of a willful and malicious injury by the debtor that would be nondischargeable under Code § 523(a)(6). In re Weihert, 2013…
A Chapter 13 Debtor Cannot Use Income Available from Paying Off a 401(k) Loan to Contribute to Their 401(k) Plan!
In Seaport v Burden, a 6th Circuit case from 2012, the Court held that Chapter 13 of the Bankruptcy Code permits individuals with regular income can keep their property if they agree to a court-approved plan to pay creditors out of their future “disposable income. The Code requires, however, that a Chapter 13 plan can…
If you the US Government any money, make sure you file Bankruptcy before you file your Income Tax Return!
In a recent case in the Western District of Michigan, a Bankruptcy judge ruled that the US Government had the right to set off a debt under 11 USC 553 even when the Setoff was listed as an asset and exempted under 11 USC 522. The Judge ruled that 11 USC 553 Setoff provision trumps…
What is the basis for Judicial Estoppel in the 6th Circuit?
The test for judicial estoppel in Sixth Circuit was set forth in Stephenson v. Malloy, 700 F.3d 265 (6th Cir., Oct. 30, 2012). The Stephenson court stated: To support a finding of judicial estoppel, the court must find that: (1) the debtor assumed a position that was contrary to the one that he asserted under oath…
What constitutes an “Income Tax” return as required for submission to the Trustee under the Bankruptcy Code?
In a recent decision, the Court held that Form 4549 filed by debtor was not income tax “return” for purpose of Code § 523(a)(1). A Form 4549 Income Tax Examination Changes dated July 19, 2007, signed by the debtor was not a tax return under IRC § 6020(a) and thus was not a qualifying tax…
What constitutes “Attorney Work Product” when a creditor is attempting to discover matters relating to Schedule F – the Schedule setting forth the General Unsecured Creditors?
In McDowell, the Court required debtors’ attorney to turn over debtors’ original Schedule F, but not other documents. Ruling on the U.S. Trustee’s motion to require the Chapter 7 debtors’ attorney to turn over various documents created during the debtors’ case, the court held that: A questionnaire created by the attorney, to which one or…