As reported by Robin Miller of CBAR, the Till rate is proper interest rate for 910-day-car claim in Chapter 13 plan. While the hanging paragraph added by BAPCPA to Code § 1325(a) prevents a 910-day-car claim from being stripped down to the value of the motor vehicle securing the claim, this did not prevent a Chapter 13 plan from modifying a creditor’s 910-day-car claim in other ways, such as by reducing the interest rate payable on the claim from the rate called for in the parties’ contract, and the Till rate was the proper interest rate where the creditor did not present any evidence that 2% was an inappropriate risk adjustment to the 3.25% prime rate. In re Kemmery, 516 B.R. 485 (Bankr. N.D. Ohio,…

No. As reported by Robin Miller of CBAR, a Court will decline to order substantive consolidation of Chapter 7 debtors with non-debtor LLC. Substantive consolidation, generally: Substantive consolidation is a judicially-created doctrine that treats separate legal entities as if they were merged into a single entity, pooling the assets and liabilities of the two entities, so that the assets of the two entities may result in a common fund available to satisfy the debts of both entities to ensure the equitable treatment of all creditors. The Sixth Circuit has recognized substantive consolidation as a function of the court’s equitable power under Code § 105. See In re Cyberco Holdings, Inc., 734 F.3d 432 (6th Cir. 2013). Substantive consolidation requires proof that (1) prepetition the entities…

Yes. According to Robin Miller of CBAR, the granting of debtor’s motion to reopen case, for purpose of avoiding creditor’s lien, would be conditioned on debtor’s reimbursing creditor for expenses incurred as result of debtor’s delay. Generally, reopening a case for the purpose of avoiding judicial lien under Code § 522(f), Courts have long held that avoidance of a judicial lien under Code § 522(f) falls within the ambit of “cause” to reopen a case under Code § 350(b) because it presents the potential for relief to the debtor. Nevertheless, courts agree that reopening cases to avoid judicial liens should not be allowed carte blanche, but instead, there are limitations that must be recognized. First, where the court cannot afford the debtor the requested relief,…

Not in Ohio. As reported by Robin Miller of CBAR, under Ohio Rev. Code § 2329.66(A)(1)(b), which permits the exemption of “one parcel or item of real or personal property that the [debtor] … uses as a residence,” the debtors could claim a homestead exemption in two contiguous parcels where the debtors used both parcels as their residence. The debtors’ home was on one parcel while the driveway to and utility lines for the residence were on the other. Agreeing with In re Cassetto, 475 B.R. 874 (Bankr. N.D. Ohio 2012, although employing different reasoning, the court in In re Way, 2014 WL 4658745 (Bankr. N.D. Ohio, Sept. 18, 2014), reconsideration denied, 2014 WL 5794835 (Nov. 6, 2014) held that, since the Ohio homestead exemption…

No. As reported by Robin Miller of CBAR, the dismissal of the Chapter 7 debtor’s case for bad faith amounting to cause under Code § 707(a) was not warranted where there was no evidence that the debtor had concealed or misrepresented his own assets or income or that he lived or continued a lavish lifestyle reflective of a lack of good faith in dealing with his creditors. The U.S. Trustee asserted that the debtor filed the case in order to discharge his potential liability for allegedly assisting his parents in defrauding their creditors, the court credited the debtor’s testimony that his purpose in seeking a discharge was to enable him to forge a path to save his home and restructure his mortgage loan. The debtor…

Yes. As reported by Robin Miller of CBAR, disagreeing with In re Surprise, 342 B.R. 119 (Bankr. N.D. N.Y. 2006) and In re Clayton, 2010 WL 4008335 (Bankr. E.D. Wash., Oct. 12, 2010), the court in In re Moore, 521 B.R. 280 (Bankr. E.D. Tenn., Sept. 29, 2014) held that a creditor’s filing a proof of claim for an unsecured debt that was discharged in the debtor’s prior bankruptcy case may violate the discharge injunction issued in that earlier case. Under Code § 523(a)(2), a debtor’s discharge “operates as an injunction against … an act, to collect, recover or offset any such debt as a personal liability of the debtor,” and a creditor’s filing a proof of claim is “an act.” (case no. 1:13-bk-11325; adv….

Yes. As reported by Robin Miller of CBAR, agreeing with In re Frambes, 454 B.R. 437 (Bankr. E.D. Ky. 2011) and disagreeing with Motichko v. Premium Asset Recovery Corp., 395 B.R. 25, 29 (Bankr. N.D. Ohio 2008), the court in In re Stevens, 2011 WL 6812807 (Bankr. E.D. Tenn., Dec. 28, 2011)held that an action for contempt, based on a violation of the discharge injunction, must be prosecuted by filing a motion in the debtor’s main bankruptcy case, not by filing an adversary proceeding. In re Moore, 521 B.R. 280 (Bankr. E.D. Tenn., Sept. 29, 2014) (case no. 1:13-bk-11325; adv. proc. no. 1:14-ap-1011) (Bankruptcy Judge Shelly D. Rucker)