An unsecured junior lien on the debtor’s residential real estate may be avoided after the debtor completes Chapter 13 plan payments. The case law in the Eighth Circuit, interpreting Nobelman, permits wholly unsecured liens to be stripped off.
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The court granted summary judgment to a lender who objected to the debtors’ attempt to modify their monthly mortgage payments through their proposed Chapter 13 plan. The debtors argued that the terms of the loan had been modified, but there was no evidence of anything other than a temporary modification. The debtors were given time to file an amended plan to account for the appropriate mortgage payment.
The debtors do not have standing to challenge the assignment of their mortgage, so that count of their complaint was dismissed. The dispute over payments made to a junior lienholder after the senior lien had been stripped off (but which was later reinstated) is not a matter for the bankruptcy court to decide. However, the debtors did incur additional expenses in attempting to ascertain the validity and priority of the liens, and they may go forward on that count of their complaint.
This lawsuit originated in state court nearly 15 years ago and had been tried, appealed, and set for retrial there. The same matters were also raised in probate court in a claim against a deceased defendant’s estate. When the current defendant filed bankruptcy, the case was removed to bankruptcy court as an adversary proceeding. While the adversary proceeding involved claims adjudication and was therefore a core proceeding, the bankruptcy court nevertheless determined that, because of prevailing state law issues and the case’s lengthy history in state court, permissive abstention was the appropriate course of action and it remanded the litigation to state court.
A lender was not obligated to release its pre-petition lien when the debtors filed bankruptcy, so the lender is not subject to a finding of civil contempt or sanctions for its failure to do so. Its failure to timely file an amended UCC financing statement releasing some of the collateral, and thereby causing harm to the debtors, was negligent, but not willful.
The court denied summary judgment for allegations of preferences and fraudulent transfers. Factual issues existed as to whether the creditor was an insider, and whether the transfers were made with intent to defraud. The judgment on which the creditor relied in collecting the debt was entered after the automatic stay was in effect, so it was void. Whether that stay violation was willful was a question to be determined at trial.
After hearing testimony from the debtors about their failure to comply with a creditor’s discovery requests, the court granted the creditor’s motion for summary judgment and awarded attorney fees as sanctions. Having found the debtors’ explanations of the whereabouts of the collateral in question to be evasive and less than credible, the court also denied them a discharge.
In a dispute over the rights to money recovered in a South Dakota bankruptcy case, the court ruled that, although the funds were not property of the Nebraska debtor’s bankruptcy estate, the Nebraska bankruptcy trustee was entitled to be compensated for his efforts to recover the money from the South Dakota debtor and litigate its ownership because his actions were reasonable. As between the trustee and the creditors to whom the recovered funds were ultimately awarded, the equities favor the trustee and the recovered funds may be surcharged for his fees and expenses.
The bankruptcy court denied the debtors’ motion to reopen their Chapter 7 bankruptcy case to list a judgment creditor and determine the dischargeability of that debt. Under § 523(a)(3), the state court that issued the judgment has concurrent jurisdiction to determine the debt’s dischargeability because discharge is an affirmative defense, so there is no reason to have the bankruptcy court involved as well.
The court previously ruled that traceable insurance proceeds for the fire loss of the debtor’s home were exempt under the homestead exemption. The debtor then used the proceeds to purchase non-homestead tangible property. The court ruled that the proceeds lost their exempt status upon their use for something other than buying a new homestead or repairing the damaged homestead.