Cite as: Keith M. Lundin, Lundin On Chapter 13, § 138.7, at ¶ ____, LundinOnChapter13.com (last visited __________).
Usury1 and even RICO2 laws have been used by clever Chapter 13 lawyers to disallow or subordinate creditors’ claims. That the amount of a creditor’s claim is difficult to calculate may render the claim unliquidated for eligibility purposes3 but does not disallow the claim for other purposes in the Chapter 13 case. Similarly, claims against the debtor as a personal guarantor, though contingent, may be estimated for Chapter 13 purposes and allowed.4
Res judicata can bar relitigation of a debtor’s defenses to a claim when the claim was fully litigated prior to bankruptcy.5 On the other hand, if the debtor was successful in litigation prior to bankruptcy, the state court judgment can provide a defense to allowance of the claim in a subsequent Chapter 13 case.6
The enforcement of arbitration clauses in consumer credit contracts is a hot issue that has spilled into Chapter 13 claims litigation. Typically, the issue arises when the debtor objects to a claim and the creditor responds by invoking a contract clause that requires arbitration of disputes. The resulting collision of two strong policies—one favoring the enforcement of contract arbitration clauses and the other supporting the exclusive jurisdiction of the bankruptcy court to resolve claims disputes—has more often than not been resolved in favor of the debtor in Chapter 13 cases.7
Many reported and unreported decisions reveal the great variety of claims issues and defenses that are litigated in Chapter 13 cases.8
1 See Corcoran v. TranSouth Fin. Corp. (In re Corcoran), 268 B.R. 882 (Bankr. M.D. Fla. 2001) (Finance charge in debtors’ used-car contract did not exceed Florida statutory maximum of $17 per $100 per year.); Jones v. First Fidelity Acceptance Corp. (In re Jones), 231 B.R. 66 (Bankr. E.D. Ark. 1999) (Adversary proceeding alleging that car loan was usurious under Arkansas law is defeated by choice of law provision in contract that required application of Texas law.); Dent v. Associates Equity Servs. Co. (In re Dent), 130 B.R. 623 (Bankr. S.D. Ga. 1991) (Nonrebatable “loan fee,” when added to other interest charges, rendered loan transaction usurious under Georgia law.); Boyajian v. Dufusco (In re Giorgio), 62 B.R. 853 (Bankr. D.R.I. 1986) (In addition to disallowing and subordinating creditor’s claim, court found claim usurious, found that claim holder violated the Rhode Island RICO Act and awarded the debtors treble damages.).
2 Boyajian v. Dufusco (In re Giorgio), 62 B.R. 853 (Bankr. D.R.I. 1986).
3 See § 16.1 [ What Is a Liquidated Debt? ] § 16.1 What Is a Liquidated Debt?.
4 In re Fox, 64 B.R. 148 (Bankr. N.D. Ohio 1986). See also National Loan Investors v. LaPointe (In re LaPointe), 253 B.R. 496 (B.A.P. 1st Cir. 2000) (Debtor as guarantor of mortgage has standing to challenge reasonableness of foreclosure sale; bankruptcy court finding that mortgage holder failed to give adequate notice and failed to reasonably advertise the foreclosure sale was supported by the record. Proper remedy was not disallowance of deficiency claim, but debtor was entitled to offset against the deficiency the damages sustained from the failure to properly conduct the foreclosure sale.).
5 Williams v. International Bhd. of Elec. Workers, Local 520 (In re Williams), 298 F.3d 458 (5th Cir. 2002) (District court judgment for contempt and damages is res judicata in claims litigation during Chapter 13 case.); Abboud v. Abboud (In re Abboud), 237 B.R. 777 (B.A.P. 10th Cir. 1999) (Debtor’s statute of limitations objection to claim is barred by Rooker Feldman doctrine because same statute of limitations defense was decided against the debtor by a state court before bankruptcy. Court distinguishes Peper v. Litton, 308 U.S. 295, 60 S. Ct. 238, 84 L. Ed. 2d 281 (1939).); In re Morley, 292 B.R. 446 (Bankr. D.N.H. 2003) (On debtor’s objection to claim, prebankruptcy settlement agreement was not subject to rescission based on fraud.); Ramirez v. NYCTL 1996-1 Trust (In re Ramirez), 283 B.R. 156 (Bankr. S.D.N.Y. 2002) (Default judgment in prior Chapter 13 case that determined the amount of city’s tax claim is res judicata in claims litigation in subsequent Chapter 13 case.); In re Hanes, 248 B.R. 136 (Bankr. W.D. Mo. 2000) (Failure to appeal state court order confirming support obligation is fatal to debtors’ objection to the resulting claim.); In re Tant, 156 B.R. 1018 (Bankr. W.D. Mo. 1993) (State court determination that judgment was still enforceable, notwithstanding the failure of any party to seek execution or revival before passage of 10 years, is binding on bankruptcy court, and claim based on that judgment is valid.); In re Bowers, 69 B.R. 822 (Bankr. D. Conn.), rev’d sub nom. Bowers v. Connecticut Nat’l Bank, 78 B.R. 388 (D. Conn. 1987) (Doctrine of res judicata bars reconsideration of the validity of the note underlying the creditor’s claim.); Rau v. Bender (In re Gilman), 59 B.R. 234 (Bankr. D. Ariz. 1986) (Chapter 13 trustee has standing to object to claim; however, prepetition judgment against the debtor bars relitigation by trustee.); In re Novak, 37 B.R. 31 (Bankr. D. Conn. 1983) (Debtor who objected to proof of claim is entitled to discovery to determine whether default judgments underlying claim were procured by fraud.); Bloomer v. Bustraan, 32 B.R. 25 (Bankr. W.D. Mich. 1983) (Res judicata defeats objection to claim based on a prebankruptcy state court default judgment in the absence of fraud or collusion.). But see In re Germain, 249 B.R. 47 (Bankr. W.D.N.Y. 2000) (Because the action held to be a malicious prosecution was instituted in the debtor’s name without her knowledge, consent or ratification, the damages claim is not enforceable against the debtor under § 502(b)(1).); Neese v. Hollywood Video, Inc. (In re Neese), 196 B.R. 39, 40 (Bankr. W.D. Va. 1995) (Sustains debtor’s objection to claim for lack of personal liability notwithstanding state court default judgment against the debtor. Default judgment was based upon a contract between two corporations. Debtor was not officer or director of the corporation that contracted for the debt, and there was no evidence of any agreement between the debtor and the creditor. “Debtor’s Objection to Claim is not barred by the doctrine of res judicata. . . . Since the judgment in this case was by default, the issue of Kathryn Neese’s personal liability was never litigated and, thus, is not barred by the doctrine of res judicata.”); In re Fulton, 148 B.R. 838 (Bankr. S.D. Tex. 1992) (Even a final state court judgment that fixes the damages for the debtor’s prepetition breach of a lease is subject to the limitation in § 502(b)(6). The amount of the lessor’s claim, “including attorney’s fees,” is limited to the maximum amount specified in § 502(b)(6)—in this case, one year of rent. The lessor is also entitled to unpaid rent as of the date on which it repossessed the property or accepted surrender from the debtor.).
6 See, e.g., Empire Funding Corp. v. Armor (In re Armor), No. 99-1529, 2000 WL 1568201 (4th Cir. Oct. 20, 2000) (Table decision at 232 F.3d 887) (State court judgment that construction of building was defective can be asserted by debtors as a defense to claim of holder of deed of trust; res judicata does not bar objection to claim because the state court did not address the argument that the loan was not enforceable.); Marulanda v. Marrero (In re Marrero), 162 B.R. 20 (S.D. Fla. 1993) (Debtor’s objection to fraud claim is sustained based on collateral estoppel and statute of limitations grounds. State court judgment in debtor’s favor collaterally estops claimant’s fraud claims. State statute of limitations with respect to fraud also bars creditor’s claim.); In re Hendricks, 250 B.R. 415 (Bankr. M.D. Fla. 2000) (Prepetition judgment against the debtor in lawsuit against divorce attorneys for malpractice is preclusive of the claim of those attorneys for unpaid fees that could have been recovered as a counterclaim but were not mentioned in the judgment against the debtor.); In re Gibson, 249 B.R. 645 (Bankr. E.D. Pa. 2000) (Prepetition state court default judgment is binding as to the amount of mortgage lender’s claim, and lender is limited to interest at the state judgment rate through confirmation. Allowed amount of secured claim is reduced to reflect that dragnet clauses in four mortgage loans failed the “relatedness rule.”); In re Gates, 187 B.R. 426 (Bankr. N.D.N.Y. 1995) (Mortgage holder’s claim is disallowed because mortgage was voided by a Pennsylvania default judgment, notwithstanding a prior inconsistent New York judgment in favor of the mortgage holder.).
7 See, e.g., Mintze v. American Gen. Fin., Inc. (In re Mintze), 288 B.R. 95 (Bankr. E.D. Pa. 2003) (Arbitration clause in home improvement mortgage is not enforceable because debtor’s adversary proceeding is a core proceeding to determine the validity and priority of the mortgage lien that will affect confirmation of a plan and the rights of all creditors.), aff’d, No. 03-2113, 2003 WL 22701020 (E.D. Pa. Nov. 12, 2003) (Bankruptcy court appropriately refused enforcement of arbitration clause because adversary proceeding to rescind mortgage directly affected the rights of all creditors.); Hicks v. Homeq Servicing Corp. (In re Hicks), 285 B.R. 317, 323 (Bankr. W.D. Okla. 2002) (Lender’s motion to compel arbitration is denied in debtor’s adversary proceeding alleging violations of Oklahoma Consumer Protection Act and Truth-in-Lending Act. Citing Green Tree Financial Corp. Alabama v. Randolph, 531 U.S. 79, 121 S. Ct. 513, 148 L. Ed. 2d 373 (2000), “Debtor’s potential liability for the costs of the arbitration exceeding one day could inhibit her willingness to pursue her claims against Homeq, and calls into question the accessibility of the arbitral forum to resolve Debtor’s claims.”); Larocque v. Citifinancial Mortgage Co. TX (In re Larocque), 283 B.R. 640, 642 (Bankr. D.R.I. 2002) (On debtor’s objection to Citifinancial Mortgage Company’s claim and debtor’s adversary proceeding alleging Truth-in-Lending Act violations, bankruptcy court has discretion whether to enforce arbitration clause in mortgage contract; because “resolution of this dispute will establish whether Citifinancial is a secured or unsecured creditor in the bankruptcy case, thereby affecting how creditors will share in the Debtor’s assets, and in what priority,” adversary proceeding and claim objection are core proceedings that should be retained by the bankruptcy court and not sent for arbitration.).
8 See, e.g., Bevan v. Socal Communications Sites, LLC (In re Bevan), 327 F.3d 994 (9th Cir. 2003) (Foreclosing creditor that bid on debtor’s property and then voluntarily paid junior IRS lien to eliminate IRS’s redemption right is not subrogated to IRS’s claim against the debtor.); Berardi v. IRS (In re Berardi), No. 02-4240, 2003 WL 21796549 (3d Cir. Aug. 5, 2003) (unpublished) (Debtor failed to rebut the IRS’s evidence of unreported income from gambling.); Adams v. Coveney (In re Coveney), 162 F.3d 23 (1st Cir. 1998) (On debtor’s objection to claim, Chapter 13 debtor was not personally liable for withholding and meals taxes incurred by the debtor’s corporation in the course of operating a restaurant.); Pro Fin., Inc. v. Spriggs (In re Spriggs), 219 B.R. 909 (B.A.P. 10th Cir. 1998) (BAP sustains debtor’s objection to mortgage holder’s proof of claim that included fees and expenses for a foreclosure sale conducted in violation of the automatic stay.); Nicholson v. Dubroc (In re Nicholson), No. Civ. A. 99-03552, 2000 WL 159313 (E.D. La. Feb. 10, 2000) (Restructuring agreement between debtor and mortgage holder was unenforceable or lapsed on account of a condition precedent and would not support objection to mortgage holder’s secured claim.); In re Hollida, 212 B.R. 831, 833 (N.D. W. Va. 1997) (District court need not withdraw reference to liquidate embezzlement claim because “claim of debtor’s alleged embezzlements is not a personal injury tort in nature and . . . the claim in question is properly within the jurisdiction of the United States Bankruptcy Court.”); In re Goldberg, 297 B.R. 465 (Bankr. W.D.N.C. 2003) (Student loan claim is disallowed because debtor was victim of fraud by Southern College of Business, which closed one week after debtor signed student loan forms.); In re Gillis, 293 B.R. 134 (Bankr. N.D. Ohio 2002) (Objection to check-cashing-creditor’s claim for liquidated damages of $183 is overruled because under Ohio law, if liquidated damage amount was disallowed, creditor would then be entitled to a larger claim for prepetition interest.); In re Scott, 281 B.R. 404 (Bankr. M.D. Ga. 2002) (Debtor is not entitled to recover attorneys’ fees in litigation over mortgage holder’s refusal to pay premiums for disaster mortgage protection. Debtor failed to prove that mortgagee acted in bad faith or was stubbornly litigious for purposes of Georgia fee-shifting statute.); In re Acker, 275 B.R. 143 (Bankr. D.D.C. 2002) (Agent for claim holder must prove that money is still owed to get unclaimed funds from the Treasury after dismissal of a Chapter 13 case.); In re Williams, 269 B.R. 68 (Bankr. M.D. Fla. 2001) (Because rollover of distribution from 401(k) plan did not occur within 60 days, Chapter 13 debtor was properly taxed on the distribution.); In re Hall, 265 B.R. 435 (Bankr. W.D. Mo. 2001) (Claim based on 1985 note and mortgage to debtor’s mother is not barred by 10-year Missouri statute of limitations because last installment became due within 10 years of petition and mother did not previously accelerate the note.); In re Crosby, 261 B.R. 470 (Bankr. D. Kan. 2001) (Credit union claims are disallowed or subordinated because credit union caused Form 1099-C, cancellation of debt, to be filed with the IRS when debtors defaulted.); In re McGee, 258 B.R. 139 (Bankr. D. Md. 2001) (Judgment against corporation wholly owned by Mr. and Mrs. McGee is an allowable claim in Mr. McGee’s Chapter 13 case because, under Maryland Construction Trust statute, Mr. McGee has personal liability for construction funds not used to pay suppliers.); In re Bean, 252 B.R. 570 (Bankr. M.D. Fla. 2000) (Resolving ambiguity in agreements, debtor was personally liable for motor vehicles sold out of trust by automobile dealership.); Moran v. Household Realty Corp. (In re Moran), 249 B.R. 90 (Bankr. E.D. Pa. 2000) (Credit life insurance was canceled before the petition; debtor is liable for the mortgage, and insurance company is not responsible to pay the mortgage on the death of the debtor’s husband.); In re Verdi, 244 B.R. 314 (Bankr. E.D. Pa. 2000) (Absence of consideration for restrictive covenants in the debtor’s employment contract is fatal to claim for breach.); In re Whitus, 240 B.R. 705 (Bankr. W.D. Tex. 1999) (100% penalty tax assessment against nonfiling spouse is a community claim in the Chapter 13 case, but the claim can be separately classified for no payment because in a Chapter 7 case, applying § 726(c), the community claim would not be payable from the debtor’s postpetition earnings.); In re Artura, 230 B.R. 236 (Bankr. E.D.N.Y. 1999) (That creditor is a corporation dissolved under state law does not defeat the allowance of creditor’s claim.); In re Atkins, 228 B.R. 14 (Bankr. M.D. Fla. 1998) (Sustains debtor’s objection to proof of claim filed by successor in interest to fertilizer business that the debtor sold before the petition. Debts in proof of claim did not survive the sale of the corporation to the claimant.); In re Kindinger, 219 B.R. 214 (Bankr. N.D. Ohio 1998) (On Chapter 13 debtors’ objection to former landlord’s claim, landlord was entitled to four months’ rent and to damages totaling $15,187.69 based on Ohio law and the debtors’ holding over under the lease.).
Barnes v. Sea Haw. Rafting, LLC, 889 F.3d 517 (9th Cir. Mar. 28, 2018) (Fisher, Paez, Nguyen) (After detailed discussion of rights of injured seaman when vessel owner was thought to be a Chapter 13 debtor, stay relief is granted to allow district court to adjudicate maritime issues. Ninth Circuit indicates that vessel never became property of a bankruptcy estate because of special attributes of maritime law.).
Moses v. CashCall, Inc., 781 F.3d 63 (4th Cir. Mar. 16, 2015) (Niemeyer, Gregory, Davis) (In a fractured decision, declaratory action against CashCall to void 233% loan is not subject to tribal arbitration clause when CashCall filed proof of claim and objection prevented withdrawal of that claim. In contrast, damages action under state debt collection law was subject to arbitration.).
Kelly v. Mace (In re Mace), No. 13-4068, 2014 WL 3608504, at *6-*7 (6th Cir. July 22, 2014) (unpublished) (Gilman, Gibbons, Stranch) (Evidence supports bankruptcy court's determination that debtor made enforceable, oral agreement to obtain release of creditor's guaranty of loan to business in which creditor and debtor were involved. "[T]he bankruptcy court decided that Kelly and Skelton were more credible witnesses than Mace. . . . Mace orally promised to relieve Kelly of all K & M debt in consideration for Kelly signing over to Mace his half of K & M's stock. The parties reached mutual agreement on these terms, exchanged consideration, and delineated the terms of their bargain with sufficient clarity. . . . The statute of frauds does not apply if the promisor's main object is to serve his own pecuniary or business purpose. . . . [T]he bankruptcy court did not err in holding that Mace breached the oral agreement, resulting in damages to the Kellys . . . ."), rev'g and remanding No. 10-42899, 2013 WL 4067623 (B.A.P. 6th Cir. Aug. 13, 2013) (unpublished) (Emerson, McIvor, Preston) (Oral promise to remove business partner from bank guaranty was not an enforceable promise that would support claim.).
Douglas v. Regions Bank, 757 F.3d 460 (5th Cir. July 7, 2014) (Smith, Dennis, Higginson) (Debtor's negligence action against bank regarding use of account to embezzle personal injury settlement proceeds was not subject to "gateway" arbitration because it was unrelated to arbitration clause in checking account contract.).
In re Kane, 628 F.3d 631 (3d Cir. Dec. 21, 2010) (Barry, Chagares, Vanaskie) (Judicial estoppel does not bar former spouse's claim in debtor's New Jersey Chapter 13 case because former spouse adequately disclosed pending domestic relations dispute in her separate New York Chapter 7 case. Former spouse has standing to assert equitable distribution claims because claims were abandoned to her by trustee in New York Chapter 7 case.).
Handelsman v. Johnson (In re Handelsman), No. 07-15901, 2008 WL 5110911 (9th Cir. Dec. 5, 2008) (Hug, Noonan, Ikuta) (No provision of tax law, bankruptcy law or common law permits a Chapter 13 debtor to offset federal income tax debt against short term capital loss carryover.).
Lewallen v. Green Tree Servicing, LLC, 487 F.3d 1085 (8th Cir. June 4, 2007) (Because Green Tree did not timely assert right to arbitration in response to debtor's claim objection, Green Tree could not later demand arbitration when debtor filed adversary proceeding that included claims litigation issues and an affirmative recovery request under RESPA. Although filing a proof of claim did not waive arbitration right, moving to dismiss complaint, serving discovery requests and demanding judgment in earlier claims dispute waived Green Tree's right to arbitration.).
Tevis v. California Dep’t of Veterans Affairs (In re Tevis), BAP No. EC-15-1111-Ta-JuD, 2016 WL 3752918 (B.A.P. 9th Cir. July 7, 2016) (unpublished) (Taylor, Jury, Dunn) (Seven-year-old adversary proceeding against mobile home lender is dismissed for failure to prosecute. Debtors lived rent-free for seven years without making payments to lender or moving adversary proceeding forward.).
Robb v. Harder (In re Robb), 534 B.R. 354, 357 (B.A.P. 8th Cir. July 16, 2015) (Kressel, Saladino, Shodeen) (Debtor lacked standing to appeal order overruling debtor's objection to claim of Chapter 7 trustee after conversion to Chapter 13 because debtor's obligations under confirmed pot plan paying less than 100% of allowed claims are not affected by outcome of claims litigation. Debtor quickly converted from Chapter 7 to Chapter 13 when Chapter 7 trustee discovered a defect in a home mortgage. After conversion, debtor confirmed a plan paying less than 100% of unsecured claims. Chapter 7 trustee filed a proof of claim for $450 for work during the Chapter 7 portion of the case. Debtor objected, and bankruptcy court overruled the objection. Debtor appealed. "The appellant has the burden to make an independent showing that he or she is aggrieved by the challenged order. . . . 'Typically, a debtor has no standing to object to claims or orders relating to them because the debtor does not have a pecuniary interest in the distribution of the assets of the estate. This is because an objection to a proposed distribution only affects how much each creditor will receive and does not affect the debtor's rights.' . . . [T]he principle can be applied equally in a chapter 13 case where the debtor is proposing to pay creditors less than the full amount of their claims. . . . [N]othing on the face of the debtor's plan suggests that the creditors would be receiving a 100% distribution. While payment of [the Chapter 7 trustee's] claim will diminish the distribution to other creditors, it has no effect on the debtor's obligations under the plan. . . . The debtor has failed to satisfy her burden as she has not pled or shown any facts establishing that the bankruptcy court's order diminished her property, increased her burdens, or impaired her rights.").
Mesa Pines Homeowner's Ass'n v. Paterno (In re Paterno), No. SC-14-1189-KuJuKi, 2015 WL 735919 (B.A.P. 9th Cir. Feb. 20, 2015) (unpublished) (Kurtz, Jury, Kirscher) (Homeowners' association claim for fines for encroachment on common areas was time barred under state law and disallowed.).
Khan v. Barton (In re Khan), 523 B.R. 175 (B.A.P. 9th Cir. Dec. 9, 2014) (Taylor, Dunn, Kirscher) (State court judgment for conversion, fraud and breach of fiduciary duties was a right to payment, not an equity interest or security, and the judgment was not subject to mandatory subordination under § 510(b).).
Choudhuri v. Deutsche Bank Nat'l Trust Co. (In re Choudhuri), No. NC-14-1140-PaJuKu, 2014 WL 5861374, at *5 (B.A.P. 9th Cir. Nov. 12, 2014) (Pappas, Jury, Kurtz) (Appeal of bankruptcy court order overruling debtor's objection to mortgage holder's claim is not rendered moot by dismissal of Chapter 13 case during appeal because "[a] bankruptcy court's order resolving an objection to a creditor's claim may have preclusive effect in other proceedings involving the parties.").
Pierce v. Carson (In re Rader), 488 B.R. 406 (B.A.P. 9th Cir. Mar. 8, 2013) (Klein, Pappas, Markell) (Arizona law that required lender to commence deficiency action within 90 days after foreclosure or forfeit deficiency claim is pre-empted by Bankruptcy Code; amount and allowance of deficiency claim would be determined in bankruptcy court. “[C]ompliance with the Bankruptcy Code and A.R.S. § 33–814 was impossible because the latter required the Carsons to file an action within ninety days of the foreclosure sale, but the automatic stay and the discharge injunction prevented them from doing so. . . . [T]he Bankruptcy Code and A.R.S. § 33–814 are in conflict and the state law must yield. . . . Requiring the Carsons to file a deficiency action pursuant to A.R.S. § 33–814 would also be contrary to the Bankruptcy Code’s framework for determining the secured and unsecured status of claims.”).
Singh v. Loheit (In re Singh), No. EC-10-1290-KiDJu, 2011 WL 7145756 (B.A.P. 9th Cir. Dec. 16, 2011) (unpublished) (Kirscher, Dunn, Jury) (Debtor did not include necessary transcript for purposes of appeal, leaving BAP without ability to determine whether bankruptcy court abused discretion in denying declaratory relief with respect to whether debtor was named person.).
Margulies Law Firm, APLC v. Placide (In re Placide), 459 B.R. 64 (B.A.P. 9th Cir. Oct. 5, 2011) (Kirscher, Sargis, Pappas) (Reasonableness standard applies under § 502(b)(4) to allowance of any claim for prepetition attorney services; fee request that was 150% of maximum possible litigation recovery raised issue, and attorneys failed to prove reasonableness.).
Edwards v. Edmondson (In re Edwards), 446 B.R. 276 (B.A.P. 8th Cir. Apr. 12, 2011) (Kressel, Schermer, Nail) (Applying Missouri law, judgment creditor is entitled to post-judgment interest, including interest during the pendency of the debtors' appeals through the state courts.).
Foster v. Double R Ranch Ass'n (In re Foster), No. WW-09-1379-JuHRu, 2010 WL 6259990 (B.A.P. 9th Cir. July 19, 2010) (unpublished) (Jury, Hollowell, Russell) (Prepetition homeowners' association dues, late charges, interest and attorney fees are "assessments" within meaning of Declaration of Covenants and are a secured claim for purposes of the plan.).
Bryan v. Clark (In re Bryan), 407 B.R. 410 (B.A.P. 10th Cir. June 15, 2009) (Nugent, Thurman, Karlin) (Applying Colorado law, debtor could not control application by judgment creditor of proceeds from prepetition settlement.).
Pena v. Gonzalez (In re Pena), 397 B.R. 566 (B.A.P. 1st Cir. Dec. 12, 2008) (Votolato, Lamoutte, Vaughn) (Claim objection is sustained based on findings that "add on" interest violated Massachusetts usury law, was an unfair and deceptive trade practice and claimant committed common law fraud.).
Jared v. Keahey (In re Keahey), No. WW-08-1151-PaJuKa, 2008 WL 8444817 (B.A.P. 9th Cir. Nov. 3, 2008) (unpublished) (Pappas, Jury, Kaufman) (Attorney for foreclosing creditor committed tort of outrage and violated fiduciary duties as trustee under deed of trust based on years of relentless, abusive demands for payment of incorrect, illegal and unreasonable charges through three Chapter 13 cases; substantial damages and attorney fees were appropriately awarded.), aff'd, No. 09-60000, 2011 WL 288966 (9th Cir. Jan. 31, 2011) (unpublished) (Canby, Thompson, Berzon).).
Water Ski Mania Estates Homeowners Ass'n v. Hayes (In re Hayes), No. MT-07-1389-PaDJu, 2008 WL 8444812 (B.A.P. 9th Cir. Mar. 31, 2008) (unpublished) (Pappas, Dunn, Jury) (In long-running dispute between debtors and adjacent land owners, restrictive covenants were not executory contracts that could be rejected by debtors. Other rulings by bankruptcy court were not adequately noticed to land owners.).
Noble v. Ong Commodities Private, Ltd. (In re Noble), No. NV-07-1024-SRB, 2007 WL 7540993 (B.A.P. 9th Cir. Aug. 10, 2007) (unpublished) (Smith, Russell, Brandt) (Debtor failed to rebut presumption under Nevada community property law that business debt incurred by spouse was a community debt. That debt would be partially paid in separate Chapter 13 case of husband did not disallow claim in wife's Chapter 13 case because § 524(a)(3) would not be available until husband received discharge if he completed payments under his separate plan.).
Santos v. Piad (In re Santos), No. CC-06-1436-PaAK, 2007 WL 7540980 (B.A.P. 9th Cir. July 11, 2007) (unpublished) (Pappas, Alley, Klein) (Material disputed facts precluded granting summary judgment with respect to whether claimants were health care workers and, if so, what unpaid wages were due from the debtors.), appeal after remand of No. CC-04-1594-BKPa, 2005 WL 6960216 (B.A.P. 9th Cir. Dec. 20, 2005) (Brandt, Klein, Pappas) (Sua sponte summary judgment overruling debtors' objections to claims of former employees was inappropriate given contested nature of claims.).
Shutak v. Weiskirch (In re Shutak), No. CC-06-1071-PaLB, 2006 WL 6811034 (B.A.P. 9th Cir. Oct. 11, 2006) (unpublished) (Pappas, Lee, Brandt) (Form of order dismissing debtor's adversary proceeding against claim holders accurately reflected dismissal on the merits.).
Crosby-Simmonds v. Campbell (In re Crosby-Simmonds), No. CC-06-1011-PaLB, 2006 WL 6810923 (B.A.P. 9th Cir. Oct. 10, 2006) (unpublished) (Pappas, Lee, Brandt) (Malicious prosecution judgment against nonfiling spouse is claim against debtor because debtor's community property earnings are subject to execution to pay nonfiling spouse's debt.).
Michael R. White & Assocs. v. Jawad (In re Jawad), No. CC-05-1258-MaMoPa, 2006 WL 6810985 (B.A.P. 9th Cir. May 9, 2006) (unpublished) (Marlar, Montali, Pappas) (When equipment subject to a finance lease was never delivered, risk of loss did not pass and debtor is not obligated to pay amounts that lender/lessor never advanced to supplier.).
Martindale v. Meenderinck (In re Meenderinck), No. WW-05-1365-RSKr, 2006 WL 6810973 (B.A.P. 9th Cir. Mar. 31, 2006) (unpublished) (Russell, Smith, Kirscher) (Securities fraud claims by investors were not barred by settlement of corporate liability in district court receivership.), aff'd, 256 Fed. Appx. 913 (9th Cir. Nov. 19, 2007) (unpublished) (Canby, Graber, Gould).).
Mahindru v. Bhatia (In re Mahindru), No. CC-04-1145-KMAB, 2005 WL 6960184 (B.A.P. 9th Cir. June 8, 2005) (unpublished) (Klein, Marlar, Brandt) (Bankruptcy court appropriately quieted title in favor of creditor with long-standing relationship to debtor.).
Yormak v. Yormak (In re Yormak), No. 2:18-cv-309-FtM-29, 2018 WL 2763343 (M.D. Fla. June 8, 2018) (Steele) (District court denies interlocutory appeal of order sustaining a Chapter 13 trustee’s objection to a claim. The underlying dispute concerned whether the creditor engaged in the unauthorized practice of law. Bankruptcy court could determine that issue without first obtaining a ruling from the Florida Supreme Court.).
Dettore v. JEM Real Estate Preferred Fund I, LLC (In re Dettore), No. 15-45642, 2016 WL 4727479 (E.D. Mich. Sept. 12, 2016) (unpublished) (Cox) (Bankruptcy court appropriately enforced Ohio choice-of-law provision in a Michigan contract that permitted the lender to charge higher interest than would have been permitted by Michigan law.), reconsideration denied, No. 15-45642, 2016 WL 6158963 (E.D. Mich. Oct. 24, 2016) (Cox).).
Innerwood & Co., LLC v. Privett (In re Privett), 557 B.R. 580 (S.D. Ohio Sept. 8, 2016) (Dlott) (Remand necessary for fact-finding to determine whether noncompete agreement is a claim that could be discharged or a nondischargeable injunction that does not require expenditure of money or payment of damages.).
Bradley R. Kirk & Assocs., Inc. v. Spellman (In re Spellman), No. CV 15-507 PA, 2015 WL 5471433 (C.D. Cal. Sept. 17, 2015) (Anderson) (Debtor's objection to attorney fee claim of state court counsel is precluded by state court judgment affirming arbitration award to attorney., aff'd, No. 15-56508, 2018 WL 2996772 (9th Cir. June 15, 2018) (unpublished) (McKweon, Callahan, Quist).).
Shahid v. FNBN I, LLC (In re Shahid), No. 4:14CV1211 RLW, 2014 WL 7338815 (E.D. Mo. Dec. 22, 2014) (White) (Postpetition, preconfirmation attorney fees and costs to enforce homeowners' association's judgment disallowed under § 506(b) when judgment did not provide for attorney fees and costs. Postconfirmation fees are governed by state law, rather than § 506(b), and are recoverable costs under state law.), aff'd, No. 15-1047, 2015 WL 5778845 (8th Cir. Oct. 5, 2015) (Wollman, Bye, Gruender).).
Nemec v. Bank of N.Y. Mellon, No. 13-cv-593-wmc, 2014 WL 905473 (W.D. Wis. Mar. 7, 2014) (Conley) (Challenge to validity and enforceability of mortgage precluded by Rooker-Feldman doctrine when final judgment of foreclosure entered by state court.).
Marasek v. Wilentz, Goldman & Spitzer, No. 12-cv-5422, 2013 WL 2352701 (D.N.J. May 29, 2013) (unpublished) (Sheridan) (Discovery orders were not final and not appealable.).
Tomassi v. MDS, Inc., No. 5:12-CV-00201-TBR, 2013 WL 1636435 (W.D. Ky. Apr. 16, 2013) (unpublished) (Russell) (Reference withdrawn of complaint alleging employment discrimination; motion to remand to state court referred to bankruptcy court for consideration of abstention.).
Boutwell v. Walker, No. 2:13cv170-MHT, 2013 WL 1331670 (M.D. Ala. Apr. 2, 2013) (unpublished) (Coody) (District court cannot enforce consent order entered in bankruptcy court.), report and recommendation adopted by No. 2:13cv170-MHT, 2013 WL 1774623 (M.D. Ala. Apr. 25, 2013) (Thompson).).
Olick v. House (In re Olick), No. 11cv4982, 2012 WL 6592208 (E.D. Pa. Dec. 18, 2012) (Yohn) (Some claims against attorney for negligent representation were barred by res judicata, some counts were time barred, but failure to represent debtor against National Association of Securities Dealers survived.), aff'g in part as mod., rev'g in part No. 10-038, 2011 WL 2565665, at *4 (Bankr. E.D. Pa. June 28, 2011) (Frank) (Res judicata barred debtor's complaint against former attorney for fraud, negligence, malpractice and breach of fiduciary duty. Debtor had pursued claims for 10 years, including in prior bankruptcy case. "After more than ten (10) years and multiple adverse court decisions, Olick's claims against House should be put to rest. Enough is enough.").
Olick v. Kearney (In re Olick), 466 B.R. 680 (E.D. Pa. Nov. 30, 2011) (Yohn) (Bankruptcy court properly sanctioned pro se debtor $1,000 for asserting claims against Aetna Life Insurance Company that had been previously dismissed with prejudice by district court and were barred by res judicata.).
Olick v. Northampton Cnty. (In re Olick), No. 10-7492, 2011 WL 5075104 (E.D. Pa. Oct. 26, 2011) (Yohn) (Debtors had no property interest in funds used by Bank of America to pay property taxes and complaint did not state cause of action against County for accepting payment.), aff'g, No. 09-0312ELF, 2010 WL 4509828 (Bankr. E.D. Pa. Nov. 9, 2010) (Frank) (Debtor failed to establish fraud, conversion, stay violation, harassment, breach of contract, RICO violation or fraudulent claim filing when County transferred tax claim postpetition to mortgage creditor that satisfied tax claim. Bankruptcy Rule 3001 permits creditor to transfer claim postpetition for value, and debtor established no harm by transfer.).
Holloway v. Community Bank, No. 3:10-CV-75, 2011 WL 4500042 (E.D. Tenn. Sept. 27, 2011) (Phillips) (Citing French v. American General Financial Services (In re French), 401 B.R. 295 (Bankr. E.D. Tenn. Feb. 13, 2009) (Stair), failure to redact Social Security and account number does not give rise to private remedy under § 107(c); "publicity" element of state law claim for invasion of privacy was not satisfied.).
Mortland v. Aughney, No. C 11-00743 WHA, 2011 WL 2653515 (N.D. Cal. July 6, 2011) (Alsup) (Class claim filed on behalf of uncertified class of former employees was properly expunged. Prerequisite for class claim is that proponent seek determination under Bankruptcy Rule 7023. Putative class representatives lacked commonality requirement—none were employed by debtors within 180 days of Chapter 13 filing, and there were no common priority wage claims.).
Ford Motor Credit Co. v. Roberson, No. WDQ-10-1041, 2010 WL 4286077 (D. Md. Oct. 29, 2010) (Quarles) (Ford Motor Credit waived arbitration rights by failing to seek arbitration until eight months after debtor filed adversary proceeding and after bankruptcy court made initial determinations adverse to Ford. Bankruptcy court certified to Maryland Court of Appeals question whether ipso facto repossession was lawful under Maryland law.).
eCast Settlement Corp. v. Matthews-Orr, No. 07-4386 (SRC), 2008 WL 2386172 (D.N.J. June 9, 2008) (Chesler) (Arbitration award in favor of debtor is invalid because eCast did not agree to submit dispute to arbitrator selected by debtor; objection to claim based on invalid arbitration award does not overcome prima facie validity of eCast claim as assignee of credit card debt. Under contract, creditor could agree to submit dispute to arbitration, with three potential arbitrators to be selected. Contract process was not followed. Bankruptcy court erred in recognizing validity of arbitration award, which had ordered creditor to pay debtors $72,630 in damages, plus attorney fees and costs, as well as to mark account paid.).
HSBC USA, NA v. Schwartz, No. CV-08-1280 (CPS) (VVP), 2008 WL 2357380 (E.D.N.Y. June 4, 2008) (Sifton) (In foreclosure action removed to district court and then referred to bankruptcy, mortgagee's request to remand to state court is denied without prejudice to renewal before bankruptcy court.).
In re Peoples, No. 3:06-CV-603 (RNC), 2008 WL 906832 (D. Conn. Mar. 31, 2008) (Chatigny) (Debtor is bound by settlement agreement with creditor approved after hearing.).
Yohannes v. Debell Residential LLC (In re Yohannes), No. 06 Civ. 461(LTS), 2007 WL 2034301 (S.D.N.Y. July 17, 2007) (Rescission of settlement agreement with mortgage creditor is denied when settlement of claims resulting from prepetition foreclosure judgment and postpetition foreclosure sale had been approved after hearing in bankruptcy court. Debtor argued that settlement was unconscionable, that she did not receive proper advice from her attorney and that she settled under undue influence. Bankruptcy court fully considered debtor's concerns in settlement hearing.).
Miles v. IRS, No. 06-1275(CKK), 2007 WL 809789 (D.D.C. Mar. 15, 2007) (unpublished) (On debtor's objection to IRS's proof of claim, debtor failed to carry burden of showing error in assessment and failed to show reasonable cause for abatement of penalties assessed under 26 U.S.C. § 6651(a)(1) and United States v. Royle, 469 U.S. 241, 105 S. Ct. 687, 83 L. Ed. 2d 622 (1985).).
Young v. Young (In re Young), No. 1:06CV00781, 2007 WL 676689 (M.D.N.C. Feb. 28, 2007) (unpublished) (Rescission of agreement based upon debtor's fraud is not "claim" that triggers necessity to file proof of claim.), aff'd, 2008 WL 961630 (4th Cir. Apr. 9, 2008) (Wilkinson, King, Duncan) (unpublished).).
Davis v. Mitan (In re Davis), 347 B.R. 607 (W.D. Ky. Aug. 14, 2006) (Chapter 13 debtor committed libel by posting defamatory material to a Web page and was liable for nominal damages of $5,000; injunction against use of Web page during Chapter 13 case was overly broad.), aff'g in part and rev'g in part, 334 B.R. 874 (Bankr. W.D. Ky. Dec. 7, 2005) (Plaintiff established prima facie case of liability per se based on debtor's postings on Web site; nominal damages of $5,000 are dischargeable since § 523(a)(6) is not included in § 1328(a). Debtor ordered to suspend Web site for duration of Chapter 13 plan.).
Bowen v. Bank One, No. 6:05-1021-HFF-BHH, 2006 WL 1488844 (D.S.C. May 26, 2006) (unpublished) (Debtor's pro se civil proceeding in district court alleging predatory lending practices during a Chapter 13 case and claims against attorney that represented the debtor in that Chapter 13 case are referred to the Bankruptcy Court for the District of South Carolina notwithstanding that Chapter 13 case was dismissed more than a year earlier.).
Olsen v. 419 Apartment Corp., Nos. 05 Div. 04591(PKC), 04-B-41105 (RDD), 2006 WL 20501 (S.D.N.Y. Jan. 3, 2006) (unpublished) (Settlement of claims approved by bankruptcy court survives debtor's argument on appeal that he did not intend to release claims against Apartment's attorneys and agents. Under Bankruptcy Rule 9019, settlement was properly noticed and debtor had opportunity to object.).
In re Hales, No. 18-40351-BDL, 2019 WL 1077271 (Bankr. W.D. Wash. Mar. 6, 2019) (Lynch) (After dismissal of husband’s case, creditor with judgment against husband (only) has community claim in wife’s Chapter 13 case. Stay relief is denied to allow garnishment of husband’s wages because his wages are community property that is necessary to fund wife’s Chapter 13 plan.).
In re Negrea, No. 1:18-bk-11288-VK, 2019 WL 507516 (Bankr. C.D. Cal. Feb. 7, 2019) (Kaufman) (Disallowance of claim in prior dismissed Chapter 13 case on the ground that debtor was not personally liable for nonpayment of wages by a corporation is preclusive of allowance of same claim in subsequent Chapter 13 case.).
In re Moss, No. 18-15361-LMI, 2019 WL 169409 (Bankr. S.D. Fla. Jan. 9, 2019) (Isicoff) (Landlord under Section 8 federal housing regulations cannot hold debtor personally liable for portion of subsidized rent that would have been paid by housing agency but for violations of safety regulations. Landlord is entitled to stay relief to force debtor to correct debris issues or face eviction.).
In re Tyndall, No. 17-22168, 2019 WL 113758 (Bankr. E.D. Mich. Jan. 4, 2019) (unpublished) (Opperman) (Claim of former spouse of debtor’s current nonfiling spouse is reduced several thousand dollars to reflect amounts collected by garnishments, interest accrual and disallowance of some litigation cost.).
In re Giroux, No. 18-00071-GS, 2018 WL 6650355 (Bankr. D. Alaska Dec. 17, 2018) (Spraker) (Claim against Chapter 13 debtor was purchased by debtor’s father-in-law from Chapter 7 estate of entity from which debtor’s husband misappropriated a lot of money; former business partner does not own the claim and cannot stop father-in-law from doing with it as he pleases.).
Taylor v. Allied Title Lending, LLC (In re Taylor), 594 B.R. 643 (Bankr. E.D. Va. Nov. 20, 2018) (Huennekens) (Citing Moses v. CashCall, Inc., 781 F.3d 63 (4th Cir. Mar. 16, 2015) (Niemeyer, Gregory, Davis), Allied Title Lending’s motion to compel arbitration of Chapter 13 debtor’s claim objection and adversary proceeding is denied. It didn’t hurt that State of Virginia intervened in support of debtor’s class claim that Allied was an illegal lender.).
Labovitz v. IRS (In re Labovitz), No. 18-00079, 2018 WL 6990592 (Bankr. W.D. Tenn. Oct. 15, 2018) (Latta) (Chapter 13 debtor submitted no evidence to support claim that IRS was in contempt of order prohibiting collection action against debtor’s wife’s retirement account.).
In re McMaken, No. 17-13334-BFK, 2018 WL 4471017 (Bankr. E.D. Va. Sept. 13, 2018) (Kenney) (Claim against Chapter 13 debtor based on separation agreement with former employer is disallowed for lack of evidence that debtor was bound by any fiduciary duties to creditor.).
In re Lane, No. 17-32237(1)(13), 2018 WL 3738617 (Bankr. W.D. Ky. Aug. 3, 2018) (Lloyd) (Improper use of a settlement letter during a Chapter 13 case was one of several acts by a creditor in violation of Bankruptcy Rule 9011.).
Peterson v. Laurelhart Condo. Ass’n, Inc. (In re Peterson), No. 15-2007 (AMN), 2018 WL 3014062 (Bankr. D. Conn. June 12, 2018) (Nevins) (Condominium association entitled to dismissal of Chapter 13 debtor’s adversary proceeding seeking damages and an injunction to stop foreclosure when Chapter 13 case had reached its 60-month limit, stay relief had been granted based on defaults in postpetition payment of condo fees and assessments and debtor had failed to comply with court-imposed deadlines to cure defaults.).
In re Diehl, No. 18-60608-rk, 2018 WL 2670489, at *1 (Bankr. N.D. Ohio June 1, 2018) (unpublished) (Kendig) (Direct payment of car lender is not a ground for disallowance of car lender’s filed proof of claim. “Debtor argues that, because his Amended Chapter 13 Plan allows for the disbursement of payments to Creditor through direct pay, rather than through the Trustee, Creditor’s claim should be denied. Not only does this rationale fall outside of the limited scope of § 502(b), but it misunderstands the effect of disbursement by the debtor. ‘Although such payment is commonly and colloquially referred to as being “outside” the plan, that terminology is misleading, as the claim nevertheless remains one that is being treated by, and paid according to the terms of, the plan.’”).
Griffin v. Country Credit, LLC (In re Griffin), 585 B.R. 794 (Bankr. S.D. Miss. Mar. 9, 2018) (Olack) (Complaint alleging Truth in Lending violations raised noncore causes of action against lender and complaint was subject to arbitration clause. Because arbitration agreement contained a delegation clause, initial decision by arbitrator would include whether causes of action in the complaint are arbitrable.).
In re Riley, No. 16-00263, 2018 WL 1010155 (Bankr. D.D.C. Feb. 20, 2018) (Teel) (District of Columbia statute that extinguishes condo lien for assessments if condo association does not timely respond to a request for a statement of amounts due does not apply to sale of condo by Chapter 13 debtor when lien attaches to proceeds.).
In re Filipek, No. 16-31425 (AMN), 2018 WL 816809 (Bankr. D. Conn. Feb. 9, 2018) (Nevins) (Claim objection is sustained to remove post-judgment interest because Connecticut state court judgment did not provide for interest.).
In re Kayati, No. 15-24280 (JNP), 2018 WL 722705 (Bankr. D.N.J. Feb. 5, 2018) (Poslusny) (In context of claims litigation, motion to recuse bankruptcy judge is denied because debtor failed to allege any facts indicating bias or prejudice other than judicial decisions, some of which favored the debtor.).
Lyons v. Taylor (In re Lyons), No. 17-05048, 2018 WL 672418 (Bankr. M.D. Ga. Jan. 31, 2018) (Smith) (Applying Georgia law, title to real property deeded to secure debt reverted to Chapter 13 debtors seven years after maturity of debt because deed did not contain affirmative statement of intent to establish a perpetual or indefinite security interest.).
Diaz Ortiz v. Smedley (In re Smedley), No. 16-00153-5-DMW, 2018 WL 313084 (Bankr. E.D.N.C. Jan. 5, 2018) (Warren) (In litigation between purchaser from debtor under contract to make a deed and a mortgagee, after debtor surrendered property, mortgagee not entitled to constructive trust but material disputed facts precluded summary judgment with respect to quieting title.).
Barstad v. Davidson (In re Barstad), 580 B.R. 272 (Bankr. D. Mont. Dec. 21, 2017) (Myers) (Remand of removed state court litigation is appropriate under 28 U.S.C. § 1452(b) to determine whether arbitration clause in real estate listing agreement is enforceable.).
In re Cunningham, No. 313-02021, 2017 WL 4417579, at *2
In re McDowell, No. 3:15-bk-06523, 2017 WL 4417580 (Bankr. M.D. Tenn. Oct. 3, 2017) (Walker) (Funds returned to Chapter 13 trustee because no correct address is available for the claimholder are unclaimed funds under § 347 that must be paid to and held by the treasury; contrary authority in the district that permitted reconsideration of the claim, disallowance of the balance of the claim and redistribution of the returned funds is abrogated. See also In re Cunningham, No. 313-02021, 2017 WL 4417579, at *2
In re Ketchens, No. 16-90211, 2017 WL 4326368 (Bankr. C.D. Ill. Sept. 28, 2017) (Altenberger) (Credit union’s claim against debtor is disallowed because sanctions judgment against credit union for its violation of a “third party citation” did not create a debt between the debtor and the credit union when judgment against debtor that gave rise to the third-party citation was reversed on appeal.).
In re Masic, No. 17-10312 MJK, 2017 WL 3701542 (Bankr. W.D.N.Y. Aug. 22, 2017) (unpublished) (Kaplan) (After evidentiary hearing at which both debtor and creditor represented themselves, bankruptcy court allows slightly reduced unsecured claim for construction work performed on property owned by a company owned by the debtor.).
Kiskaden v. LVNV Funding, LLC (In re Kiskaden), 571 B.R. 226 (Bankr. E.D. Ky. Apr. 10, 2017) (Wise) (In Chapter 13 debtors’ class action against LVNV (CashCall) with respect to 96% interest rate loan: declaration that debts are illegal under Kentucky law is statutorily and constitutionally core and not subject to arbitration; damages claims are statutorily core but not constitutionally core and are subject to arbitration.).
In re Washington, No. 16-02667-JW, 2017 WL 1130144 (Bankr. D.S.C. Mar. 24, 2017) (Waites) (Issuance of IRS Form 1099-C did not overcome other evidence that City did not release debtor from guarantee of corporate debt; even if three-year statute of limitations under South Carolina law applied, limitation had not expired because of tolling under state law and as extended by § 108(c)(2).).
Feldman v. Pearl (In re Pearl), No. 16-20305, 2017 WL 932951 (Bankr. E.D. Ky. Mar. 8, 2017) (Wise) (Chapter 13 debtor’s counterclaims for conversion, minority shareholder oppression and breach of contract are dismissed for failure to state causes of action in response to nondischargeability complaint.).
Montalvo v. Vela (In re Montalvo), 559 B.R. 825 (Bankr. S.D. Tex. Oct. 14, 2016) (Rodriguez) (Remand of removed state court litigation between debtor and holder of a state court judgment is denied after analysis of many factors bearing on mandatory abstention, discretionary abstention and equitable remand.).
In re Branch, Nos. 14-02379-5-SWH, 15-05318-5-SWH, 15-01265-5-SWH, 2016 WL 4543770, at *5–*15 (Bankr. E.D.N.C. Aug. 31, 2016) (Humrickhouse) (Compensatory damages, attorney fees, limited punitive damages and injunctive relief are appropriate when creditor filed proofs of claims that included personal information in attachments in hundreds of cases and acted slowly to correct the problem. WakeMed Physician Practices filed proofs of claims in hundreds of Chapter 13 cases that included attachments containing Social Security numbers, patient account numbers, date of birth, and other personal information. Employee of creditor testified that she had limited or no training with respect to the filing of bankruptcy claims. “[U]ntil the motions to restrict access were filed in this case . . . the court’s procedure for restricting public access was to provide the offending party with 30 days to redact the information before the court would actually restrict access. . . . As a result of . . . counsel’s prompting, the court adjusted its procedure to restrict access upon receipt of the motion . . . . [C]ase law overwhelmingly holds that there is no private right of action under HIPAA or § 107, and that the remedy under Rule 9037 is for the offending information to be restricted from public view. . . . However, many courts have held that § 105(a) gives the bankruptcy court the authority to sanction parties for contempt for violations of Rule 9037 under appropriate circumstances . . . . WakeMed submitted claims that included full social security numbers and dates of birth, which clearly is prohibited by Rule 9037. . . . Rule 9037 does not prohibit the inclusion of the debtor’s address . . . . [T]he inclusion of a telephone number does not violate Rule 9037. . . . [A]ccount IDs or patient numbers are probably not what was contemplated when Rule 9037 was created. . . . [D]ates of admission and discharge, medical record numbers, and other medical information . . . Rule 9037 does not address the redaction or disclosure of any of these items. . . . [T]he magnitude of the violation, and the fact that there was no supervision or training, indicates that WakeMed was more than negligent. . . . WakeMed apparently did not have procedures in place to have 159 motions to restrict access to its claims immediately brought to the attention of counsel. As a result of the failure in procedure, there was a delay of four weeks . . . . This constitutes a ‘failure’ to take timely remedial action. . . . The court does not find the actions of WakeMed to be intentional or malicious, but the failure to have proper procedures in place resulted in WakeMed’s failure to take immediate action when the initial motions to restrict access were filed. . . . Ms. Clark and her counsel did the court and the public a service by bringing this matter to the attention of the court. The court will award Ms. Clark her actual expenses . . . . WakeMed has already agreed to pay for one year of credit monitoring for any debtor whose information was disclosed in violation of Rule 9037. . . . [T]he court will require WakeMed to send a new letter to all of the debtors and any non-debtor minor whose social security number or full date of birth was included in a proof of claim . . . offering credit monitoring for one year at no cost . . . . The court finds it appropriate to award fees to the Sasser Law Firm for its efforts. . . . [A] punitive sanction in the amount of $70,000 is appropriate in this case. WakeMed will be directed to pay the amount of $50,000 to the court, and $10,000 each to Ms. Clark and Ms. Bostick for their roles as ‘stalking horses’ in bringing this matter to the attention of the court and forcing corrective action by WakeMed.”).
In re Dubose, 555 B.R. 41, 47, 45 (Bankr. M.D. Ala. Aug. 2, 2016) (Sawyer) (“Disbursements that are successfully delivered to a creditor, affirmatively rejected by that creditor, and returned to the trustee, are not ‘unclaimed property’ within the meaning and purpose of 11 U.S.C. § 347(a).” In consolidated case, creditors returned distributed funds to the trustee without explanation. “In the context of Chapter 13, . . .‘when a secured creditor returns funds to the trustee, “the monies in the Chapter 13 Trustee’s hands are not ‘unclaimed property’ pursuant to Section 347 and should not be paid into the Registry of Court.”’ . . . The purpose of designating and holding unclaimed funds is to ensure that a creditor to whom a distribution is owed has the opportunity to recover the funds in the event that there is a failure in the delivery of the distribution. This purpose is nullified when the creditor receives the distribution but then affirmatively acts to return it. Designating such rejected funds as unclaimed property would effectively throw the money into an abyss. Neither the debtor nor any other creditor could claim the money, it would never escheat to the government, and it would not earn interest; it would simply stagnate. . . . In . . . [these cases] the delivery of the distribution to the creditor was successful, and the creditor affirmatively rejected the distribution. These funds do not fall within the purview of § 347(a) because they are not ‘unclaimed’ within the meaning and purpose of that provision.”).
In re Freeman, 540 B.R. 129, 135 (Bankr. E.D. Pa. Nov. 4, 2015) (Frank) (Debtor has standing to object to unsecured proof of claim notwithstanding that plan pays less than 100% and debt is all dischargeable. “In light of the real risk that a plan will not be completed, leaving the debtor liable on the prepetition claims, the debtor has a legitimate interest in seeing that only valid claims (to which he or she has no defense) are paid by plan distributions. In addition, if the chapter 13 trustee makes a distribution on a time-barred claim, the debtor has a legitimate concern that the trustee’s payment pursuant to the debtor’s plan may be asserted as an ‘acknowledgment’ of the debt, resulting in the re-commencement of the limitations period.”).
In re Earl, No. 14-01693, 2015 WL 6745712 (Bankr. D. Haw. Nov. 4, 2015) (Faris) (Failure to file state excise tax returns within 12 months of due date as required by statute resulted in loss of exemption for sales of personal property shipped out of state).).
In re Carroll, No. 12-23295, 2015 WL 6735384 (Bankr. D. Kan. Nov. 3, 2015) (unpublished) (Somers) (Release of lien required adversary proceeding; granting of motion for release of lien was clear error and would be set aside.).
In re Cunningham, No. 15-02658-HB, 2015 WL 5216246, at *2 (Bankr. D.S.C. Sept. 3, 2015) (Burris) (Claim was stale and disallowed; scheduling claim as noncontingent and undisputed did not revive debt barred by statute of limitations. "[A]llowing a stale debt to be revived by the debtor's action of simply fulfilling the disclosure obligations of bankruptcy would be contrary to the purpose of the Bankruptcy Code and . . . South Carolina d[oes] not support a finding of revival of the debt on these facts.").
Harrelson v. Spray (In re Harrelson), 537 B.R. 16, 23-28 (Bankr. M.D. Ala. Sept. 2, 2015) (Sawyer) (Turnover and fraudulent conveyance actions against attorney contracted to perform "debt settlement services" were subject to arbitration, but claim for violation of debt relief agency provisions of Bankruptcy Code was not. "[T]here is no bankruptcy-based preclusion of the FAA unless 'an inherent conflict exists between arbitration and the underlying purposes of the Bankruptcy Code.' . . . The existence of an inherent conflict between the FAA and the Bankruptcy Code hinges largely on whether the proceedings at issue are core or non-core. . . . 'However, even if a proceeding is determined to be a core proceeding, the bankruptcy court must still analyze whether enforcing a valid arbitration agreement would inherently conflict with the underlying purposes of the Bankruptcy Code.'" Turnover claim was substantively a breach of contract claim, non-core and subject to arbitration. Though fraudulent conveyance claim was core, "'enforcing [the] valid arbitration agreement would [not] inherently conflict with the underlying purposes of the Bankruptcy Code.' . . . A claim asserting violations of debt relief agency restrictions is not specifically listed as a 'core' proceeding under 28 U.S.C. § 157(b)(2). Nevertheless, it is a core proceeding because the right to disgorge fees of entities purporting to provide bankruptcy assistance is established by the Bankruptcy Code and is unique to bankruptcy. . . . 'It is unlikely that Congress intended that the role of bankruptcy courts in enforcing 11 U.S.C. § 526 be overridden by private parties through prepetition contracts. Congress clearly contemplated the regulation of debt relief agencies . . . through the BAPCPA.' . . . Defendants' scheme on a broad scale victimizes both debtors and creditors because it preys on at-risk debtors to siphon away money that would otherwise be used to pay creditors. . . . In light of the importance of these issues, the specialized knowledge that will be required to resolve them, and the predatory nature of the Defendants' scheme as alleged . . . , the Court cannot allow this claim to be referred to arbitration.").
In re Templeton, 538 B.R. 578, 586-87 (Bankr. N.D. Ala. Aug. 6, 2015) (Robinson) (Confirmed plan is not "unconditional promise in writing signed by the party to be charged" for purpose of defeating statute of limitations objection to stale claim. "It is true that chapter 13 plans are in writing and are signed by debtors. Once confirmed, a plan's provisions become binding on the debtor, creditors, and the trustee. . . . Those provisions are not, however, a new unconditional promise by debtors to pay those creditors who filed their claims preconfirmation. The commitments of debtors under chapter 13 plans, even if they could be construed as 'promises' between the debtors and creditors, are 'conditional.' . . . [C]onsider the consequences of default. If a chapter 13 debtor defaults under a confirmed plan, creditors do not have a breach of contract cause of action for the amounts that remained owing under the plan—which may be a fraction of the original debt—but instead creditors may move to dismiss the case, and if the case is dismissed, the debtor will be denied the continued benefits of chapter 13, including the automatic stay and discharge upon completion of plan payments. . . . In contrast to an unconditional promise to repay debts, chapter 13 plan provisions are the debtors' proposals for dealing with debts . . . , and that proposal when approved by the court is binding on all parties by virtue of the confirmation order. But the plan's repayment proposal, even after confirmation, is always conditioned upon the debtor receiving the benefits of chapter 13. In the event the case is dismissed and those benefits are lost, the plan and its order of confirmation no longer have a binding effect on the debtors or anyone else as to payments that have not yet been made. . . . Default under a confirmed plan is not a breach of an unconditional written promise; it is a failure to perform as proposed and as ordered in exchange for the potential discharge and other plan-completion benefits. Thus, provisions in confirmed chapter 13 plans to pay all or a percentage of unsecured claims are not unconditional promises or new contracts sufficient to remove the bar from the otherwise stale claims . . . .").
In re Flores, No. 09-07963 (ESL), 2015 WL 4039204, at *1 (Bankr. D.P.R. June 30, 2015) (Lamoutte) (Debtor not entitled to unclaimed funds. Bankruptcy court may release funds only to a rightful owner—the "creditor that is the owner of a proof of claim on account of which the trustee made the distribution.").
In re Bennett, 528 B.R. 273 (Bankr. E.D. Pa. Apr. 7, 2015) (Frank) (Objection to claim of City of Philadelphia for unpaid water and sewer bills is sustained in part based on evidence that property was unoccupied during portion of estimated billing period.).
In re Radewald, No. 14-33542, 2015 WL 1541414 (Bankr. E.D. Tenn. Mar. 30, 2015) (Bauknight) (Deficiency claim is allowed when debtors failed to overcome presumption that bank paid fair market value at foreclosure sale.).
In re Seltzer, 529 B.R. 385 (Bankr. M.D. Ga. Mar. 27, 2015) (Carter) (Neither scheduling of debt nor payments under confirmed plan sufficed under Georgia's revival statute to defeat trustee's objection that claim was barred by statute of limitations.).
Ames v. Zimmerman (In re Ames), 525 B.R. 866, 869-70 (Bankr. D. Mass. Feb. 24, 2015) (Hoffman) (Arbitration agreement in legal services contract enforced in debtor's action against attorney for breach of duty, misrepresentation and unjust enrichment. Arbitration agreement provided "'any dispute or controversy between the parties against the other . . . arising from or related to the Law Firm and/or its agents or representatives, including the applicability of this arbitration clause, shall be resolved by neutral binding arbitration.' . . . This litigation arises from [debtor's] claims that [defendant] kept for himself . . . [funds] paid under the legal services agreement. . . . [T]his controversy arises from a pre-petition contract and pre-petition transactions between . . . [the parties]. [Debtor] fails to identify any claims or rights established in the Bankruptcy Code that are implicated in this dispute. He also fails to explain how arbitration inherently conflicts with the Code's purposes, instead voicing vague concerns about an unidentified forum, unfamiliar rules, and potential costs and delays if the parties are compelled to arbitrate their dispute.").
In re Guertler, No. 14-50483, 2015 WL 739773 (Bankr. W.D. Pa. Feb. 20, 2015) (Connelly) (Judgment against husband on joint credit card debt did not bar collection of debt from wife; under Virginia law no merger occurs until judgment is entered against all obligors.).
Smith v. SunTrust Bank (In re Smith), 522 B.R. 788 (Bankr. M.D.N.C. Dec. 9, 2014) (Kahn) (Home equity line of credit to which former spouse forged debtor's signature was ratified when debtor subsequently signed modification agreement and made payments.).
In re Robertson, No. 11-10354, 2014 WL 6967935, at *1-*3 (Bankr. M.D. La. Dec. 8, 2014) (Dodd) (Debtors neither expressly nor implicitly renounced "prescription"—civil law analogue to statute of limitations—when they confirmed plan that paid unsecured claim holders and trustee made payments to holder of time-barred claim. "Liberative prescription bars claims that creditors have not timely pursued. . . . Actions on open account prescribe in three years. . . . The parties do not disagree that the claim is prescribed on its face. Instead, GC argues that the debtors have renounced the benefit of the time bar by providing for the claim in their confirmed plan, on which the trustee has made payments for three years. . . . Renunciation of accrued prescription must be '"clear, direct and absolute,"' . . . . The debtors did not schedule GC or its predecessor GE Capital among their creditors. Nor did their confirmed plan demand payment of any specific unsecured claim: it merely referred to unsecured claims generically. . . . The plan did not explicitly declare that the debtors would pay GC's claim and therefore it is not a new promise to pay the time-barred debt. . . . [I]t does not explicitly nullify the accrued prescription. . . . Payments after prescription has accrued are not alone sufficient to tacitly renounce its benefit. . . . A debtor's unilateral actions after a bankruptcy filing, including providing for payments on a claim through a confirmed plan, cannot alone revive an unenforceable prepetition debt.").
In re Beck, No. 13-1825, 2014 WL 6606577 (Bankr. D. Haw. Nov. 5, 2014) (Faris), subsequent determination, No. 13-01825, 2015 WL 110459 (Bankr. D. Haw. Jan. 7, 2015) (Faris) (Debtor entitled to attorney fee award against apartment owners' association under Hawaii law when association filed secured proof of claim and debtor prevailed in stripping off wholly unsecured lien.).
Huff v. Gallagher (In re Huff), No. 13-00069-8-SWH-AP, 2014 WL 5714139 (Bankr. E.D.N.C. Oct. 31, 2014) (Humrickhouse) (Citing Granfinanciera v. Nordberg, 492 U.S. 33, 109 S. Ct. 2782, 106 L. Ed. 2d 26 (June 23, 1989), and Langenkamp v. Culp, 498 U.S. 42, 111 S. Ct. 330, 112 L. Ed. 2d 343 (Nov. 13, 1990), defendants not entitled to jury trial when filing proof of claim triggered claims allowance process and debtors sought disallowance of claim.).
In re Morales, 520 B.R. 544 (Bankr. W.D. Tex. Oct. 21, 2014) (Gargotta) (Deed of trust and transfer of tax lien were subrogated to ad valorem tax lien of county.).
Moore v. Comenity Capital Bank (In re Moore), 521 B.R. 280 (Bankr. E.D. Tenn. Sept. 29, 2014) (Rucker) (Debtor stated cause of action for abuse of process under § 105 when he alleged defendant improperly used personally identifiable information to systematically file unenforceable claims in Chapter 13 cases.).
In re Mason, 514 B.R. 852 (Bankr. E.D. Ky. Aug. 7, 2014) (Schaaf) (Creditors' employment discrimination and sexual harassment claims were personal injury tort claims that could not be liquidated in bankruptcy court; relief from stay granted to continue litigation in district court.).
In re Sanders, 521 B.R. 532, 538 (Bankr. D.S.C. July 28, 2014) (Waites) (Dormancy statute bars collection of judgment for all installments that fell due more than seven years prior to petition. "[R]ule that . . . dormancy statute begins to run against a judgment payable in installments from the time fixed for the payment of each installment would also apply to a property settlement judgment in a lump sum that is ordered to be paid in installments pursuant to a divorce decree." Failure of judgment to specifically address interest does not preclude interest under South Carolina law. Creditor entitled to interest on each installment due under judgment from time installment would have been timely paid.).
In re Milstein, No. 13-17286 HRT, 2014 WL 3511526 (Bankr. D. Colo. July 15, 2014) (Tallman) (Condominium association held statutory lien to secure claim for unpaid assessments.).
Barker v. Fox Den Acres, Inc. (In re Barker), 510 B.R. 771, 776 (Bankr. W.D.N.C. May 20, 2014) (Beyer) (Arbitration clause in retail installment contract enforced as to parties to contract—debtor and seller of manufactured home—as well as to parties to separate real estate transaction—debtor and vendor of property on which manufactured home was placed—when causes of action were "substantially interdependent" and arose from alleged "concerted misconduct.").
Marcum v. Marcum (In re Marcum), 508 B.R. 499 (Bankr. M.D. Fla. Apr. 17, 2014) (Williamson) (Equitable mortgage imposed under Florida law when agreements clearly indicated intent to create mortgage and money lent was used to pay real estate taxes.).
Mendez Garcia v. Doral Bank (In re Mendez Garcia), No. 13-00183-BKT, 2014 WL 1464850 (Bankr. D.P.R. Apr. 15, 2014) (Tester) (Confirmed plan that did not challenge mortgagee's claim in prior, dismissed case did not preclude debtor's challenge to mortgagee's claim in current case.).
Gause v. Citifinancial Servs., Inc. (In re Gause), No. 13-09030, 2014 WL 24147 (Bankr. M.D.N.C. Jan. 2, 2014) (Aron) (Deed of trust indexed under "Deirda Gause" rather than "Dierdra Gause" substantially complied with state's noticing requirements; mortgage could not be avoided.).
Edwards v. Vanderbilt Mortg. & Fin., Inc. (In re Edwards), No. 13-00078-8-ATS, 2013 WL 5718565 (Bankr. E.D.N.C. Oct. 21, 2013) (Small) (Arbitration clause in retail installment sales contract applied to North Carolina Fair Debt Collection Practices Act action and would be enforced; proceeding was unconstitutional core proceeding under Stern v. Marshall, __ U.S. __, 131 S. Ct. 2594, 180 L. Ed. 2d 475 (June 23, 2011).).
In re Smith, No. 07-42139-PWB, 2013 WL 3731246, at *1 (Bankr. N.D. Ga. July 10, 2013) (Bonapfel) (Car lender's application for unclaimed funds must demonstrate rightful ownership and a "present entitlement to the unclaimed funds sought" to satisfy § 347(a). "An applicant seeking unclaimed funds due to distributions that were made on account of a secured claim must show that it has an enforceable debt that has not been satisfied (through payment or disposition of collateral), and that an amount is currently due and payable to which the unclaimed funds may lawfully be applied.").
In re Mixon, No. 11-41568, 2013 WL 2481525 (Bankr. S.D. Ga. June 10, 2013) (Davis) (Debtor's motion for stay relief to pursue litigation in state court against judgment creditor was denied when debtor had consented to amount of judgment in prior bankruptcy.).
In re Campbell, No. 12-06400-8-SWH, 2013 WL 2443377 (Bankr. E.D.N.C. June 5, 2013) (Humrickhouse) (City sanctioned under § 105 for improperly filing claim as secured rather than unsecured. Attorney fees awarded. City routinely filed secured claims for water and sewer services against debtors who rented apartments or houses.).
In re Goldstein, No. 09-10565, 2013 WL 1195700 (Bankr. D. Vt. Mar. 22, 2013) (unpublished) (Brown) (Lease claim for business property was allowed as unsecured.).
In re Rodriguez, 488 B.R. 675 (Bankr. E.D. Cal. Mar. 19, 2013) (Lee) (Application to withdraw unclaimed funds denied when, following debtor's death, sole heir did not comply with California law to establish right to funds.).
Mercedes-Benz Fin. Servs. of Am., LLC v. Corner Lot Inc. (In re Lyons), 489 B.R. 270 (Bankr. N.D. Ga. Mar. 18, 2013) (Murphy) (Bankruptcy court had "arising under" jurisdiction to determine dispute between competing lienholders—creditor with security interest in truck and creditor that impounded truck postpetition.).
Patrick v. Dell Fin. Servs., L.P. (In re Patrick), No. 5:05-ap-50085-JJT, 2013 WL 951704 (Bankr. M.D. Pa. Mar. 11, 2013) (Thomas) (Class certification was denied for lack of commonality, predominance and superiority.).
In re Palmer-Dawkins, No. 11-63059-JRS, 2013 WL 937603 (Bankr. N.D. Ga. Feb. 12, 2013) (Sacca) (Debtor did not have standing to object to transfer of claim by mortgagee. Transferor and transferee complied with Bankruptcy Rule 3001(e), which only permits objections by transferor.).
In re Moses, No. 12-05563-8-RDD, 2013 WL 53881 (Bankr. E.D.N.C. Jan. 3, 2013) (Doub) (Creditor may not withdraw claim as of right following debtor's objection to claim; withdrawal would prejudice debtor by destabilizing bankruptcy court jurisdiction.).
Emard Eng'g v. Linares (In re Linares), No. 11-3028DM, 2012 WL 6737810 (Bankr. N.D. Cal. Dec. 27, 2012) (Montali) (In partially noncore proceeding, debtor's construction company not entitled to recovery.).
In re Hayes, No. 11-42579-PWB, 2012 WL 6764049 (Bankr. N.D. Ga. Dec. 17, 2012) (Bonapfel) (Creditor not entitled to unclaimed funds because creditor agreed to accept installment payments in state court after bankruptcy.).
In re Castell, No. 12-04562-8-JRL, 2012 WL 5880660 (Bankr. E.D.N.C. Nov. 20, 2012) (Leonard) (Under North Carolina law, homeowners association did not perfect lien by filing notice with clerk of superior court; claim was allowed as unsecured.), aff'd, No. 13-1884, 2014 WL 6601167 (4th Cir. Nov. 21, 2014) (unpublished) (King, Floyd, Hamilton).).
Peterson v. Green Tree Servicing, LLC (In re Peterson), No. 10-01162-DWH, 2012 WL 4175008 (Bankr. N.D. Miss. Sept. 19, 2012) (Houston) (Debtors were not entitled to injunctive relief with respect to how Green Tree had allocated interest on simple interest loans. Green Tree voluntarily reallocated trustee payments on mobile home loans, applying them as of contractual due date rather than date of receipt from trustee, providing significant financial benefit to debtors.).
Ballard v. Milk Prods., LLC (In re Ballard), No. 12-3170, 2012 WL 4162382 (Bankr. S.D. Tex. Sept. 19, 2012) (Jones) (Removed personal injury suit remanded to state court, since bankruptcy court could not conduct personal injury trial and only state law issues were involved.).
In re Lopez, No. 97-00969, 2012 WL 3257828 (Bankr. D.D.C. Aug. 8, 2012) (unpublished) (Teel) (Unclaimed funds application must be supplemented to demonstrate assignment from debtor to applicant, with statement of debtor's Social Security number to verify individual authorizing assignment, as well as affidavit of Cashfinders explaining why services were performed and reasonableness of fee.).
Wofford v. JPMorgan Chase Bank, N.A. (In re Wofford), No. 11-1167, 2012 WL 3070625 (Bankr. E.D. Tenn. July 30, 2012) (Rucker) (Debtors, joined with trustee, were barred by § 546(a) from pursuing avoidance, but § 502(d) permitted trustee's objection to secured claim.).
In re Brown, Nos. 11-30384, 11-31690, 10-31100, 2012 WL 2576473 (Bankr. W.D.N.C. July 3, 2012) (Beyer) (Remedy for violation of Bankruptcy Rule 9037 was to restrict access to unredacted information or to require redaction. No cause found to award monetary damages or attorney fees. Creditor on notice that failure to redact account numbers in future would be contempt.).
In re Pingrey, No. 12-10158, 2012 WL 1833928 (Bankr. N.D. Cal. May 18, 2012) (Jaroslovsky) (Abstention allowed state court litigation to address personal injury caused by debtor.).
Whitehead v. Holyfield (In re Holyfield), No. 09-01177-DWH, 2012 WL 1579335 (Bankr. N.D. Miss. May 4, 2012) (Houston) (Prebankruptcy state court litigation did not preclude bankruptcy court from deciding status of mobile home lien and effect of tax sale. Debtor had acquired interest in mobile home and real estate by prepetition tax sale. Issues remained whether lienholder had proper notice of tax sale and whether all necessary parties to litigation had been joined.).
Fenderson v. King (In re King), No. 11-00280-8-JRL, 2012 WL 1552887 (Bankr. E.D.N.C. Apr. 30, 2012) (Leonard) (Prebankruptcy judgment not preclusive when debtors did not have adequate notice of state court action, nor opportunity for full and fair adjudication.).
In re Freeman, No. 6:10-bk-14918-ABB, 2012 WL 1601299 (Bankr. M.D. Fla. Apr. 24, 2012) (Briskman) (Debtors were not entitled to unclaimed funds; holder of secured claim was rightful owner.), reconsideration denied by 2012 WL 1605937 (Bankr. M.D. Fla. May 1, 2012) (Briskman).).
In re Rutledge, No. 06-42015-pwb, 2012 WL 1309194, at *2 (Bankr. N.D. Ga. Mar. 21, 2012) (Bonapfel) (Unclaimed funds applicant was not entity that filed underlying claim with respect to car loan. "[P]roper way for an assignee who claims an interest in unclaimed funds payable with regard to a proof of claim filed by the assignor is to follow the procedures in Fed. R. Bank. P. 3001(e).").
In re Christopher, No. 06-42452-pwb, 2012 WL 1314090 (Bankr. N.D. Ga. Mar. 21, 2012) (Bonapfel) (Applicant for unclaimed funds was not entity that filed original secured proof of claim; assignee of claim must follow procedures in Bankruptcy Rule 3001(e), demonstrating lawful debt to which unclaimed funds may be applied.).
In re Boyd, No. 06-32628, 2012 WL 370093, at *2 (Bankr. S.D. Tex. Feb. 3, 2012) (Isgur) (Applying State Unauthorized Practice of Law Committee v. Paul Mason & Associates, Inc., 46 F.3d 469 (5th Cir. Feb. 21, 1995) (Smith, Garza, Berrigan), Rule 9010(a) only allows property locator to take purely administrative action, such as filing proof of claim; when applications to pay unclaimed funds require departure from routine administrative acts, property locator must be represented by counsel. "Although a non-attorney agent may file the initial application [for unclaimed funds], the non-attorney agent may not appear without counsel when a complexity arises. By this test, the Court—not American Property Locators—determines when the representation of counsel is necessary. Accordingly, American Property Locators is prohibited from filing a brief or appearing at any hearing, other than through an attorney.").
Oluleye v. Metlife Home Loans (In re Oluleye), No. 11-5518-JB, 2012 WL 786325 (Bankr. N.D. Ga. Jan. 30, 2012) (Bihary) (Claim of wrongful foreclosure was dismissed with prejudice when defendants had not conducted foreclosure sale. Claim that defendants lacked authority to foreclose under Georgia law was dismissed without prejudice to bringing claim in state court. Objections to amount of loan balance were dismissed without prejudice to any claim objection that might be filed.).
In re Matthews, No. 10-16869-MDC, 2012 WL 33213 (Bankr. E.D. Pa. Jan. 6, 2012) (Coleman) (Order dismissing case did not retain jurisdiction over unclaimed funds paid to clerk by trustee; debtor's attorney did not establish basis for payment of fees from those funds.).
In re Cini, No. 10-62715-13, 2011 WL 4703022 (Bankr. D. Mont. Oct. 4, 2011) (Kirscher) (Settlement of debtor's liability for prepetition automobile accident was fair and in best interests of creditors and estate; $18,000 claim was settled for $10,000, to be paid from funds held by personal injury attorney.).
Whitehead v. Holyfield (In re Holyfield), No. 09-1177-DWH, 2011 WL 4498862 (Bankr. N.D. Miss. Sept. 27, 2011) (Houston) (After tax sale of real property and mobile home, disputed facts prevented summary judgment with respect to whether redemption period had expired, whether state court litigation had violated automatic stay and whether Rooker-Feldman doctrine prevented bankruptcy court from litigating effect of state court decision.).
Turner v. American Express Centurion Bank (In re Turner), No. 11-1092, 2011 WL 4352158 (Bankr. E.D. Tenn. Sept. 16, 2011) (Rucker) (Citing B-Line, LLC v. Wingerter (In re Wingerter), 594 F.3d 931 (6th Cir. Jan. 25, 2010) (Siler, Gilman, Rogers), failure to comply with Bankruptcy Rule 3001(c) documentation requirements did not result in sanctions. No private right of action for failure to comply with Rule.).
First Tenn. Bank Nat'l Ass'n v. Hansen (In re Hansen), No. 10-1466, 2011 WL 4344560 (Bankr. E.D. Tenn. Sept. 15, 2011) (Rucker) (Debtor allowed counterclaim to Bank's complaint that methamphetamine lab had been operated in home and law enforcement had quarantined property.).
First Tenn. Bank Nat'l Ass'n v. Hansen (In re Hansen), No. 10-1466, 2011 WL 4344572 (Bankr. E.D. Tenn. Sept. 15, 2011) (Rucker) (After debtors surrendered home, amended counterclaim alleged bank allowed destruction of personal property.).
In re Pena, 456 B.R. 451 (Bankr. E.D. Cal. Sept. 9, 2011) (Lee) (Claimant was not entitled to unclaimed funds merely because it was successor in interest to mortgage lender. Claimant must demonstrate that predecessor in interest had not been paid. Motion must be served on debtor and debtor's counsel to provide opportunity to show whether money was still owed to lender.).
In re Underwood, 457 B.R. 635, 645 (Bankr. S.D. Ohio Sept. 8, 2011) (Walter) (U.S. trustee had standing to conduct Bankruptcy Rule 2004 examination of mortgage creditor notwithstanding absence of pecuniary interest; examination would be limited to debtor's loan history. Examination could not reach into creditor's policies and procedures related to loan servicers and loans not directly connected to this debtor. "[T]he explicit language of Rule 2004 requires that an examination concern the debtor or the debtor's estate.").
Pfeiffer v. Dominion Mgmt. of Del. (In re Pfeiffer), No. 11-0421, 2011 WL 4005504 (Bankr. E.D. Pa. Sept. 8, 2011) (Fox) (Motion to stay adversary proceeding and compel arbitration was granted when claims against vehicle lender fell within scope of valid arbitration agreement. Proceeding involved noncore claims for which debtor had not consented to bankruptcy court's final judgment. After arbitration, bankruptcy court may recommend findings and conclusions to district court.).
M & I Marshall & Ilsley Bank v. Murray (In re Murray), No. 10-2482, 2011 WL 3862158 (Bankr. E.D. Wis. Sept. 1, 2011) (McGarity) (Abstention is appropriate with respect to debtor's third-party complaint for indemnification after creditor and debtor consented to dismissal of dischargeability complaint; debtor's action was no longer related to Bankruptcy Code or case.).
In re Bollinger, No. 13-10-13688 JR, 2011 WL 3276240 (Bankr. D.N.M. Aug. 1, 2011) (Jacobvitz) (Pro se debtor's motion for recusal was unsupported by any suggestion of pervasive bias.).
In re Decair, No. 89-00029, 2011 WL 2976001 (Bankr. D.D.C. July 20, 2011) (unpublished) (Teel) (Sixteen years after deposit to court registry, unclaimed funds application is denied because moving party failed to establish that debt to original creditor remained unpaid.).
In re Dorsey, No. 88-00153, 2011 WL 2678588 (Bankr. D.D.C. July 7, 2011) (unpublished) (Teel) (Application for unclaimed funds was denied when moving party did not establish that original creditor had not been paid.).
Barkley v. Prommis Solutions Holding Corp. (In re Thorne), 466 B.R. 73 (Bankr. N.D. Miss. June 16, 2011) (Houston) (In complex litigation alleging involvement by defendants in unauthorized practice of law, improper legal fees, improper payment of referral fees, and improper sale of "nonlegal" assets of law firm, motions to dismiss were denied, finding sufficient facts alleged in complaint to overcome motions. Summary judgment was granted in favor of defendants LPS Default Solutions, Inc., and Lender Processing Services, Inc., which had no involvement with bankruptcy case filed by these debtors.).
Allen v. Park Place Condo. Ass'n (In re Allen), No. 11-1059, 2011 WL 2261295 (Bankr. E.D. Va. June 6, 2011) (Mitchell) (Complaint attacking condominium association's judgment lien is dismissed. Judgment arose from postpetition actions. Debtor alleged that judgment violated due process rights, but debtor could have appealed state court judgment to raise due process claims.).
In re Cameron, 452 B.R. 754 (Bankr. E.D. Ark. May 17, 2011) (Mixon) (Objection to homebuilder's claim in excess of $250,000 was sustained. Construction performance and moving into home removed oral contract from Arkansas statute of frauds, but there had never been agreement on price purchasers would pay, nor meeting of minds on contractual details.).
Syed v. Macon County Greyhound Park (In re Syed), No. 11-8004-WRS, 2011 WL 1843399 (Bankr. M.D. Ala. May 13, 2011) (Sawyer) (Abstention and remand to state court were appropriate when plaintiffs had filed proof of claim and some counts in complaint would be core but complaint had state-law origin and some parties were nondebtors.).
Dixon-Ford v. U.S. Bank Nat'l Ass'n (In re Dixon-Ford), No. 10-01772 (DHS), 2011 WL 1576082 (Bankr. D.N.J. Apr. 20, 2011) (unpublished) (Steckroth) (In adversary proceeding asserting mortgage fraud, defendant's motion to compel deposition of employee of Social Security Administration was denied. SSA's offer to respond to written interrogatories was reasonable.).
In re Wilson, No. 07-11862, 2011 WL 1337240, at *9, *10, *12 (Bankr. E.D. La. Apr. 7, 2011) (Magner) (Motion for stay relief filed by Option One was based on defective affidavit of default and was fraud on court; sanctions hearing was ordered with respect to attorney and Lender Processing Services. U.S. trustee moved for sanctions against Option One Mortgage, Fidelity National Foreclosure Services, known as Lender Processing Services (LPS), and attorney for creditor. First motion for stay relief was denied when there was no evidence of default. Second motion for relief was filed, supported by affidavit of assistant secretary for Option One, Ms. Goebel, who averred that Option One held secured claim, with attached assignment of note and mortgage, and further averred that she had reviewed and was familiar with mortgage loan account, declaring that debtors were in default. Debtors rebutted second motion by proof of payments, including cashier's checks and money orders. Court gave Option One opportunity to trace payments and provide accounting. Response filed by Option One was not accounting ordered. Show cause issued. Attorney for Option One—who represented that his contact was with LPS, from which all information regarding payments and defaults had been supplied—was sanctioned $1,000 for failure to disclose and amend second stay relief motion, revealing that some payments had been unapplied to account. Further show cause was ordered requiring Option One and assistant secretary for LPS to appear. Evidence demonstrated that LPS provided services to Option One and other mortgage holders or servicers and that LPS representative could log into Option One's computer system to verify information. Once bankruptcy was filed, Option One took no action unless requested by LPS, which was actually administering loan. LPS computer-generated reference to attorney for stay relief motion when loan was 60 days postpetition delinquent. Motions for stay relief and affidavits for default were submitted by counsel directly to LPS. Option One did not proofread nor review motions. Affidavits submitted by LPS were "sham. When an affidavit is received by LPS, an employee prints the document and delivers it to one of twenty-eight (28) LPS employees authorized by Option One to execute the document on its behalf. By corporate resolution, Option One grants these individuals 'officer' status, but limits their authority to the signing of default affidavits. These 'officers' execute 1,000 documents per day for Option One and other clients similar to the one used in this case. In fact, Ms. Goebel is an employee of LPS with little or no connection to Option One. Each day Ms. Goebel receives approximately thirty (30) documents to sign. The process of signing default affidavits is rote and elementary." As manager of work unit at LPS, Ms. Goebel allocated two hours per day for document execution, estimating it took her only five to ten minutes to sign each affidavit, and she did not personally know whether Option One was holder of note through assignment and made no effort to verify assertion or that attachments were correct. Although affidavit represented execution in presence of notary and witnesses under oath, no oath was ever administered and signature of affiant, notary and witnesses were separately affixed, outside presence of each other. Ms. Goebel's training on seriousness of affidavit review and execution was "sorely lacking. She could not remember who 'trained' her when she was promoted in 2007 to a document execution position. . . . Default affidavits are a lender's representation as to the status of a loan. They are routinely accepted in both state and federal courts in lieu of live testimony. They are an accommodation to the lending community based on a belief by the courts that the facts they present are virtually unassailable. The submission of evidence by affidavit allows lenders to save countless hours and expense establishing a borrower's default without the need for testimony from a lending representative. While they can be refuted by a borrower, too often, a debtor's offer of alternative and conflicting facts is dismissed by those who believe that a lender's word is more credible than that of a debtor. The deference afforded the lending community has resulted in an abuse of trust. The abuse begins with a title. In this case, Ms. Goebel was cloaked with the position of 'Assistant Secretary,' in a purposeful attempt to convey an experience level and importance beyond her actual abilities. Ms. Goebel is an earnest young woman, but with no training or experience in banking or lending. By her own account, she has rocketed through the LPS hierarchy receiving promotions at a pace of one (1) promotion per six (6) to eight (8) month period. Her ability to slavishly adhere to LPS' procedures has not only been rewarded, but has assured the development of her tunnel vision. Ms. Goebel does not understand the importance of her duties, and LPS failed to provide her with the tools to question the information to which she attests." Court concluded that "[t]he fraud perpetrated on the Court, Debtors, and trustee would be shocking if this Court had less experience concerning the conduct of mortgage servicers. One too many times, this Court has been witness to the shoddy practices and sloppy accountings of the mortgage service industry. With each revelation, one hopes that the bottom of the barrel has been reached and that the industry will self correct. Sadly, this does not appear to be reality. This case is one example of why their conduct comes at a high cost to the system and debtors. The hearing on the Motion for Sanctions provides yet another piece to . . . the puzzle of loan administration. In [Jones v. Wells Fargo Home Mortgage (In re Jones), 366 B.R. 584 (Bankr. E.D. La. Apr. 13, 2007) (Magner)], this Court discovered that a highly automated software package owned by LPS and identified as MSP administered loans for servicers and note holders but was programed to apply payments contrary to the terms of the notes and mortgages. In [In re Stewart, 391 B.R. 327 (Bankr. E.D. La. Apr. 10, 2008) (Magner)], additional information was acquired regarding postpetition administration under the same program, revealing errors in the methodology for fees and costs posted to a debtor's account. [In re Fitch, 390 B.R. 834 (Bankr. E.D. La. Apr. 23, 2008) (Magner)], delved into the administration of escrow accounts for insurance and taxes. In this case, the process utilized for default affidavits has been examined. Although it has been four (4) years since Jones, serious problems persist in mortgage loan administration. But for the dogged determination of the UST's office and debtors' counsel, these issues would not come to light and countless debtors would suffer. For their efforts this Court is indebted."), subsequent determination, No. 12-1256, 2012 WL 3043170 (E.D. La. July 25, 2012) (Feldman).).
In re Robinson, No. 10-24596-L, 2011 WL 10023022 (Bankr. W.D. Tenn. Apr. 6, 2011) (Latta) (U.S. trustee had standing to examine representative of secured claimant, even though no claim objection had been filed by trustee or other party in interest. Creditor waived objections to extent of examination by not asserting them in response to U.S. trustee's motion.).
In re Phillips, No. 01-02508, 2011 WL 1043665 (Bankr. D.D.C. Mar. 23, 2011) (Teel) (Spiegel Creditor Trust must supplement application for unclaimed funds, documenting that claim had not been previously paid to predecessor in interest.).
In re Wilson, No. 00-1589, 2011 WL 1043732 (Bankr. D.D.C. Mar. 23, 2011) (Teel) (Spiegel Creditor Trust must supplement application for unclaimed funds, documenting that claim had not been previously paid to predecessor in interest.).
In re Albracht, No. BK09-82778-TJM, 2011 WL 674764 (Bankr. D. Neb. Feb. 16, 2011) (Mahoney) (Chapter 13 filing did not waive contractual arbitration clause. Motion to stay arbitration was denied, permitting parties to proceed with arbitration after relief from automatic stay.).
In re Lorenzo, No. 6:09-bk-04179-ABB, 2011 WL 285628 (Bankr. M.D. Fla. Jan. 26, 2011) (Briskman) (Claim by former business investor was equity contribution, not loan. Equity contributions are not debts and do not constitute claims in a Chapter 13 case.), aff'd, No. 6:11-cv-285-ORL-35DAB, 2012 WL 404819 (M.D. Fla. Feb. 8, 2012) (Magnuson).).
Dunbar v. Cox Health Alliance, LLC (In re Dunbar), 446 B.R. 306 (Bankr. E.D. Ark. Jan. 21, 2011) (Evans) (There was no private right of action for unredacted proof of claim, but contempt could be used for violation of Bankruptcy Rule 9037. Debtor failed to prove damages when there was no evidence that anyone accessed the unredacted claim.).
In re Dandy, No. 87-01018, 2011 WL 30887 (Bankr. D.D.C. Jan. 5, 2011) (Teel) (Citicorp's motion to obtain unclaimed funds was denied without prejudice; Citicorp must file affidavit attesting that claim of predecessor in interest had not been satisfied.).
In re Ivanka, No. 88-00252, 2010 WL 5559537 (Bankr. D.D.C. Dec. 30, 2010) (unpublished) (Teel) (Citicorp's motion for unclaimed funds was denied without prejudice; Citicorp must file affidavit attesting that claim of predecessor in interest had not been satisfied.).
In re Whitley, No. 88-00180, 2010 WL 5463057 (Bankr. D.D.C. Dec. 29, 2010) (Teel) (Citicorp's motion for unclaimed funds was denied without prejudice; Citicorp must file affidavit attesting that claim of predecessor in interest had not been satisfied.).
In re Montalvo, No. 05-0006917ESL, 2010 WL 5072120 (Bankr. D.P.R. Dec. 7, 2010) (Lamoutte) (Debtors cannot claim unclaimed funds because debtors are not rightful owners. Unclaimed funds do not become surplus funds. Creditors retain property interest in unclaimed funds. Five years after trustee's deposit of unclaimed funds in registry of court, funds remaining unclaimed are deposited by bankruptcy clerk to U.S. Treasury under 28 U.S.C. § 2042.).
In re Perry, No. 03-00486, 2010 WL 5055895 (Bankr. D.D.C. Dec. 6, 2010) (Teel) (Bank of America's application for unclaimed funds must be supported by affidavit demonstrating that funds had not previously been paid to predecessor in interest.).
In re Thomas, No. 89-00958, 2010 WL 5055901 (Bankr. D.D.C. Dec. 6, 2010) (Teel) (Bank of America's application for unclaimed funds must be supported by affidavit demonstrating that funds had not previously been paid to predecessor in interest.).
In re DeVincenz, No. 91-00719, 2010 WL 5055906 (Bankr. D.D.C. Dec. 6, 2010) (Teel) (Bank of America's application for unclaimed funds must be supported by affidavit demonstrating that funds had not previously been paid to predecessor in interest.).
In re Jones, No. 93-00819, 2010 WL 5055915 (Bankr. D.D.C. Dec. 6, 2010) (Teel) (Bank of America's application for unclaimed funds must be supported by affidavit demonstrating that funds had not previously been paid to predecessor in interest.).
In re Davis, No. 94-01111, 2010 WL 5056188 (Bankr. D.D.C. Dec. 6, 2010) (unpublished) (Teel) (Bank of America's application for unclaimed funds must be supported by affidavit demonstrating that funds had not previously been paid to predecessor in interest.).
Rodgers v. Preferred Carolina Realty, Inc. (In re Rodgers), No. 10-00171-8-JRL, 2010 WL 5014340 (Bankr. E.D.N.C. Dec. 3, 2010) (Leonard) (Debtor's action concerning construction and purchase of home was precluded by state court's approval of prebankruptcy settlement among parties. All requirements for res judicata under North Carolina law were met, and state court judgment was entitled to full faith and credit under 28 U.S.C. § 1738.).
In re St. Felix, 436 B.R. 786 (Bankr. E.D. Pa. Oct. 4, 2010) (Frank) (Debtor, not unclaimed funds property locator, was entitled to refund of $6,337.91 when Chapter 13 case was overfunded. Plan was paid in full and then overfunded for reasons not revealed. Refund check to debtor from trustee was returned undelivered, and trustee paid funds into bankruptcy court registry. Funds locator contacted debtor, and debtor signed POA allowing locator to request funds from court. Debtor's bankruptcy attorney found out and resisted payment by joint check to debtor and funds locator. Applying Pennsylvania law on revocation of attorney-in-fact authority, debtor had not assigned property interest in unclaimed money and power of attorney was not coupled with irrevocable interest.).
Gonzalez Garcia v. Banco Bilbao Vizcaya Argentaria (In re Gonzalez Garcia), No. 09-0143, 2010 WL 3811298 (Bankr. D.P.R. Sept. 27, 2010) (unpublished) (Tester) (Unredacted proof of claim did not support private right of action under either § 105(a) or § 107(a). Court would have authority under § 105(a) to sanction creditor for contempt, but debtor would need to show that personal information disclosed by defendant actually caused damages.).
In re Howard, No. 93-00815, 2010 WL 3447250 (Bankr. D.D.C. Aug. 27, 2010) (unpublished) (Teel) (Application for unclaimed funds must be supported by affidavit stating that predecessor claimant had not been satisfied.).
In re Jackson, No. 98-02156, 2010 WL 3447252 (Bankr. D.D.C. Aug. 27, 2010) (unpublished) (Teel) (Application for unclaimed funds must be supported by affidavit stating that predecessor claimant had not been satisfied.).
In re Hegens, No. 98-00305, 2010 WL 3447254 (Bankr. D.D.C. Aug. 27, 2010) (unpublished) (Teel) (Application for unclaimed funds must be supported by affidavit stating that predecessor claimant had not been satisfied.).
Gulley v. Countrywide Home Loans, Inc. (In re Gulley), 436 B.R. 878 (Bankr. N.D. Tex. Aug. 23, 2010) (Jernigan) (Applying Texas law, Countrywide did not hold enforceable home equity loan. To be valid, each owner, including each spouse, must consent, and loan must be closed at office of lender, attorney at law or title company. Mrs. Gulley was not fully aware of home equity loan and did not execute loan documents—her signature was forged and notary acknowledgment was defective. Countrywide did not hold enforceable home equity mortgage, but Countrywide was allowed subrogation claim to the extent it advanced property taxes.).
In re Harrison, No. 95-00859, 2010 WL 3245515 (Bankr. D.D.C. Aug. 12, 2010) (unpublished) (Teel) (Motion for release of unclaimed funds must be supported by affidavit that successor in interest had not been satisfied.).
In re Williams, No. 91-00496, 2010 WL 3245518 (Bankr. D.D.C. Aug. 12, 2010) (unpublished) (Teel) (Motion for release of unclaimed funds must be supported by affidavit that predecessor claimant had not been satisfied.).
In re Ivanka, No. 88-00252, 2010 WL 3123088 (Bankr. D.D.C. Aug. 9, 2010) (unpublished) (Teel) (Creditor moving for release of unclaimed funds must file affidavit establishing basis for claim.).
In re Royal, No. 01-01678, 2010 WL 3123090 (Bankr. D.D.C. Aug. 8, 2010) (unpublished) (Teel) (Citicorp's motion for unclaimed funds must be supported by affidavit that it is entitled to funds originally payable to CitiFinancial; in absence of that affidavit, application for unclaimed funds was denied without prejudice.).
In re Whitley, No. 88-00180, 2010 WL 3123094 (Bankr. D.D.C. Aug. 8, 2010) (unpublished) (Teel) (Application of Citicorp for unclaimed funds must be supported by affidavit that it is entitled to funds originally payable to Citibank Maryland; in absence of affidavit, application was denied without prejudice.).
Metro Bank v. Kessler (In re Kessler), 430 B.R. 155 (Bankr. M.D. Pa. June 22, 2010) (Opel) (Adversary proceeding between creditors over priority between mortgage and mechanics' lien was within "related to" jurisdiction, but permissive abstention was warranted when resolution of dispute would not negatively impact bankruptcy estate.).
Zimmerli v. Ocwen Loan Servicing, LLC (In re Zimmerli), 432 B.R. 238 (Bankr. N.D. Tex. June 22, 2010) (Hale) (Ocwen Loan Servicing's motion to compel arbitration was denied. Adversary proceeding was core proceeding, involving allegations of stay violation, contempt of court and improper fees in violation of Bankruptcy Rule 2016. Arbitration would conflict with purposes of Bankruptcy Code.).
In re Nelson, No. DK 06-06751, 2010 WL 1752600 (Bankr. W.D. Mich. Apr. 28, 2010) (unpublished) (Dales) (Withdrawal of unclaimed funds was denied when eCast failed to prove present entitlement. eCast had not filed proof of claim, and there was uncertainty whether unclaimed funds belonged to eCast or to debtors.).
In re Labenz, No. BK08-81978-TJM, 2010 WL 1430859 (Bankr. D. Neb. Mar. 4, 2010) (Saladino) (Upon sale of real property after confirmation, when marital dissolution agreement (MDA) provided that debtor would pay mortgage obligation to U.S. Bank, proceeds should be used to pay U.S. Bank notwithstanding that U.S. Bank released its lien after discovering that its mortgage was not signed by debtor. Failure to pay U.S. Bank would leave former spouse personally liable, and MDA required debtor to hold former spouse harmless. Debtor was awarded marital property on premise that she would pay U.S. Bank obligation. To extent former spouse had made payments to U.S. Bank after divorce, he should be reimbursed.).
Bencharsky v. Cottman Transmission Sys., LLC (In re Bencharsky), No. 09-1145, 2010 WL 309145, at *1 (Bankr. N.D. Cal. Jan. 19, 2010) (Jaroslovsky) (Motion to compel arbitration is denied because bankruptcy court can "more quickly and economically" determine adversary proceeding arising out of claims objection. Until claim dispute is resolved, creditors would receive no distribution under 36-month plan. "The court simply cannot wait for some other tribunal to hear the matter, even if the court were sure that the tribunal was fully aware that Bencharsky is a Chapter 13 debtor.").
In re Siebe, No. BK09-80321-TLS, 2009 WL 6338611 (Bankr. D. Neb. Nov. 13, 2009) (Saladino) (That bank had received some payments in son's prior Chapter 11 did not result in novation, accord and satisfaction, or laches; under § 524(e), son's prior discharge did not eliminate debtors' separate obligation to bank. Doctrine of laches is not favored in Nebraska and is sustainable only when litigant has been guilty of inexcusable neglect in enforcing right to prejudice of adversary, and debtors failed to identify such actions by bank.).
Carter v. Checkmate, Cash Advance Ctrs., LLC (In re Carter), No. 09-00132-TOM, 2009 WL 3425828, at *3 (Bankr. N.D. Ala. Oct. 23, 2009) (unpublished) (Mitchell) (Compensatory damages allowed when creditor failed to answer complaint alleging improper filing of proof of claim with debtor's unredacted social security and bank account numbers. "If a debtor's personal identifiers are not redacted, then Rule 9037(d) provides relief. . . . Specifically, Rule 9037(d) provides that a court may, for cause, order the personal identifiers redacted or limit electronic access to the document." Court previously ordered striking of proof of claim and directed creditor to file new claim with redacted information. Neither § 107(c) nor E-Government Act of 2002 provides private right of action. Creditor's conduct was inadvertent or negligent rather than intentional, but compensatory damages were awarded for bringing test case. Debtor allowed $144 for missed work and $300 in attorney fees.).
In re Field, 440 B.R. 191 (Bankr. D. Nev. Oct. 8, 2009) (Markell) (Under Nevada law, IRS had "community claim," making it proper for IRS to include in proof of claim nonfiling spouse's premarital tax liability. Community claim, defined in § 101(7), is debt owed by either debtor or debtor's spouse when that debt could have been satisfied from community property in bankruptcy estate, whether or not such property existed at commencement of case.).
In re Pickett, No. 07-04412-8-JRL, 2009 WL 3188464, at *1 (Bankr. E.D.N.C. Oct. 5, 2009) (unpublished) (Leonard) (When mortgage creditor voluntarily withdrew proof of claim after settlement of amount to be paid from sale of property in full satisfaction of debt, lender was required to refund to trustee $5,195.25 paid from plan payments. "The effect of withdrawing a proof of claim is that it 'renders the withdrawn claim a legal nullity and leaves the parties as if the claim had never been brought.'").
Whitaker v. EMC Mortgage Corp. (In re Whitaker), No. 09-9000, 2009 WL 6499340 (Bankr. N.D. Ga. Sept. 18, 2009) (Murphy) (Pro se complaint against mortgage creditor was not properly served, but plaintiff was allowed time to properly serve defendant under Bankruptcy Rule 7004; plaintiff should amend complaint to describe damages.).
In re Balliew, No. 99-41154, 2009 WL 6498179 (Bankr. N.D. Ga. Aug. 12, 2009) (unpublished) (Professional funds locator's motion for unclaimed funds was denied; trustee and unsecured creditors were given 60 days to assert interests in unclaimed funds. Application of claims locator did not document entitlement to funds. AmSouth had filed proof of claim, but objection stated that bank had been paid in full.).
Emery-Watson v. Mantakounis (In re Emery-Watson), 412 B.R. 670 (Bankr. D. Del. July 31, 2009) (Shannon) (Under Delaware law, contract for sale of debtor's residence was unconscionable, justifying rescission, when neighbor acquired for $30,000 property that was appraised for $150,000; contract was so one-sided as to shock conscience of court.).
Figueroa Rivera v. Money's People, Inc. (In re Figueroa Rivera), No. 08-00100, 2009 WL 2900306 (Bankr. D.P.R. June 22, 2009) (Lamoutte) (Debtors entitled to $270,000 in damages when creditor, a judicial depository of maritime vessel under Puerto Rico law, failed to properly maintain vessel.).
Clark v. Palm Harbor Homes, Inc. (In re Clark), 411 B.R. 507 (Bankr. S.D. Ga. May 29, 2009) (Davis) (Although court lifted stay to permit contractual arbitration, under Georgia law, arbitration award could be modified because it exceeded scope of order allowing arbitration; award modified to delete requirement that debtor pay defendants within 90 days and that required debtor to obtain permanent financing, but award upheld with respect to allowance of claim against bankruptcy estate by home builder.).
In re Kee, No. 01-87193, 2009 WL 6498508 (Bankr. N.D. Ga. May 22, 2009) (Bonapfel) (Motion by Fifth Third Bank for unclaimed funds denied when record claim holder was Fifth Third Mortgage Co. rather than parent bank; debtor, counsel and trustee are entitled to notice of motion.).
In re Charnote, No. 03-93371-MGD, 2009 WL 6498178 (Bankr. N.D. Ga. Apr. 29, 2009) (Diehl) (Car lender's motion for unclaimed funds was denied when creditor did not demonstrate compliance with Georgia law to preserve right to deficiency after repossession of car.).
In re Hall, 403 B.R. 224 (Bankr. D. Conn. Apr. 15, 2009) (Dabrowski) (Lack of personal jurisdiction is a ground to disallow a credit card claim based on a default judgment.).
In re Peterson, No. 08 B 71744, 2009 WL 994945 (Bankr. N.D. Ill. Apr. 10, 2009) (Barbosa) (Rooker-Feldman doctrine prevents use of claims litigation to invalidate state court determination of debtor's liability as personal guarantor.).
In re Huskins, 405 B.R. 576 (Bankr. N.D. W. Va. Mar. 16, 2009) (Flatley) (In dispute over construction of cabin, builder was entitled to unsecured claim for unjust enrichment based on value of cabin, plus interest from time of construction.).
In re Englehaupt, No. 08-80388, 2009 WL 691294 (Bankr. C.D. Ill. Mar. 11, 2009) (Perkins) (Sister-in-law who cosigned for debtor's purchase of vehicle was accommodation party and a creditor entitled to reimbursement for payments to lender. Plan proposed to surrender vehicle to GMAC. Debtor ordered to sign over car to sister-in-law to allow her to resolve liability to GMAC.).
Douglass v. Langehennig (In re Douglass), No. 08-1007, 2009 WL 595329 (Bankr. W.D. Tex. Mar. 6, 2009) (Gargotta) (In dispute between former spouses, $75,000 down payment on marital home was gift, and no constructive trust or equitable lien encumbered sale proceeds for repayment.).
French v. American Gen. Fin. Servs. (In re French), 401 B.R. 295 (Bankr. E.D. Tenn. Feb. 13, 2009) (Stair) (Absent private right of action, remedy for electronic filing of proof of claim that failed to redact social security number and birth date in attachments is order that all attachments be removed from ECF system. Finding no private right of action under § 107, Bankruptcy Rule 9037 addressed privacy protections, and remedy under that Rule was order removing offending attachments. No private right of action exists under Gramm-Leach-Bliley Act or E-Government Act of 2002, and § 105 does not create private right of action when one does not otherwise exist. However, court has authority under § 105(a) if future hearing demonstrates that creditor is liable for contempt for violating § 107 requirements.).
Siewick v. Clayborn (In re Siewick), No. 06-216, 2009 WL 563694 (Bankr. N.D. W. Va. Feb. 10, 2009) (Flatley) (Former employee's claim for $42,800 of unpaid wages is disallowed, and debtor's counterclaim that former employee damaged debtor's business is also denied.).
Russell v. Queen City Furniture (In re Russell), 402 B.R. 188 (Bankr. N.D. Miss. Jan. 23, 2009) (Olack) (Action for damages based on proof of claim that failed to redact personal identifiers stated causes of action that predominantly arose under or in the bankruptcy case, and resulting core proceeding should not be ordered into arbitration. Adversary proceeding included an objection to the unredacted claim, violations of the Gramm-Leach-Bliley Act, contempt of court, violation of Bankruptcy Rule 9037 and actions for invasion of privacy and intentional or negligent infliction of emotional distress under state law. Creditor moved to compel arbitration. Arbitration "would inherently conflict with the underlying purposes of the Bankruptcy Code.").
In re Taylor, No. 08-60242-13, 2008 WL 4723364 (Bankr. D. Mont. Oct. 23, 2008) (Kirscher) (Claim by creditor who contracted with debtors to remodel bathroom is reduced because claim was knowingly overstated by inclusion of postpetition interest and creditor's breach of contract.).
Buesgens v. Bergman (In re Bergman), 397 B.R. 348 (Bankr. E.D. Va. Oct. 21, 2008) (Mitchell) (Bankruptcy Court lacks subject matter jurisdiction over discrimination complaint by individual who is neither creditor nor debtor; third party cannot use debtor's case to file action that is similar to action by debtor when third party is not in privity with debtor.).
Stokes v. Gear (In re Gear), No. 08-01069-NPO, 2008 WL 4948445 (Bankr. N.D. Miss. Oct. 7, 2008) (Olack) (Debtor's complaint against Credit Acceptance Corporation for breach of contract and conversion is dismissed because Credit Acceptance Corporation did not accept assignment of debtor's car purchase contract.).
Diggs v. Guarantee Serv. Team of Professionals, Inc. (In re Diggs), No. 08-1057, 2008 WL 5096008 (Bankr. E.D. La. Sept. 18, 2008) (Magner) (Objection to home repair claim is overruled when creditor did not breach its contract and debtors terminated contract prior to completion of repairs; creditor has unsecured claim for labor and expenses incurred prior to contract termination.).
Taylor v. Furnance Assocs., Inc. (In re Taylor), No. 07-00718-TJC, 2008 WL 4225761, at *7 (Bankr. D. Md. Sept. 10, 2008) (Catliota) (In lien priority dispute under Maryland law, creditor advancing funds to satisfy first deed of trust is equitably subrogated to first lien position to extent of funds advanced for payoff, but is junior to intervening lienholder for other loan proceeds. "[A] refinancing lienholder's constructive knowledge [of subsequent lienholder] has no effect on the application of equitable subrogation, and its negligence only has an effect on the application of equitable subrogation if the intervening lienholder is placed in a worse position than if the refinance had not occurred. In this case, there is not dispute that (1) the Debtor failed to disclose the existence of the intervening lien in the loan application process, and (2) [subrogated creditor] retained a party to search the land records but the existence of the intervening lien was not discovered.").
Philadelphia v. Blaylock (In re Blaylock), 394 B.R. 359 (Bankr. E.D. Pa. Sept. 10, 2008) (Frank) (Bankruptcy court has related to jurisdiction over debtor's removed proceeding contesting validity of tax sale. Although removal at end of plan would have no impact on estate distribution, court has discretion to retain jurisdiction considering judicial economy, fairness and convenience to litigants and difficulty of legal issues. Tax sale is invalid because city failed to satisfy Pennsylvania statutory requirements for issuance of order authorizing tax sale.).
McClellan v. Newburyport Five Cents Sav. Bank (In re McClellan), No. 07-1350, 2008 WL 3982074 (Bankr. D. Mass. Aug. 22, 2008) (Feeney) (Evidence does not support contention that bank induced debtor to enter into construction loan by fraudulent or negligent misrepresentation concerning extent of project costs and value of condominium units; counterclaim for setoff against debtor's funds on deposit is granted.).
In re Gill, No. 04-14062-B-13, 2008 WL 3925261 (Bankr. E.D. Cal. Aug. 20, 2008) (Lee) (Application for unclaimed funds is denied when creditor failed to establish that it still held mortgage and was entitled to unclaimed funds; debtor granted opportunity to show entitlement to funds.).
In re Lozano, 392 B.R. 48 (Bankr. S.D.N.Y. Aug. 13, 2008) (Glenn) (Motion to compel mortgage creditor and servicer to produce original loan documents is denied when debtors failed to establish that current mortgage holder and servicer had possession or control over documents.).
In re Jones-Gold, No. 05-20471 (DHS), 2008 WL 3833426 (Bankr. D.N.J. Aug. 11, 2008) (Steckroth) (Motion to require mortgage creditor to refund cost of force-placed flood insurance is denied when debtor delayed six years to make request with knowledge that flood insurance was unnecessary.).
In re Brooks, No. 07-10611 (JKF), 2008 WL 2993948 (Bankr. E.D. Pa. July 31, 2008) (Fitzsimon) (Objection to mortgagee's claim is sustained when based on mortgage that was extinguished by judgment of foreclosure under Pennsylvania's Doctrine of Merger.).
In re Hansen, 391 B.R. 896 (Bankr. M.D. Fla. July 22, 2008) (Paskay) (Rule 60 motion for relief from order approving compromise of claim is denied.).
Schacher v. Dolph (In re Dolph), Nos. 04-37320-rld13, 07-03326-rld, 2008 WL 2492269 (Bankr. D. Or. June 11, 2008) (Dunn), reconsideration denied, 2008 WL 2937586 (Bankr. D. Or. July 24, 2008), aff'd, 2009 WL 839373 (D. Or. Mar. 24, 2009) (Brown) (Assets transferred from decedent to debtor are subject to constructive trust when debtor engaged in conspiracy to divert assets from other heirs; unjust enrichment to debtor is offset by credits for what debtor otherwise should have received from decedent's estate.).
In re Chase, 388 B.R. 462, 467-68 (Bankr. D.N.H. June 3, 2008) (Deasy) (Objection to claim coupled with avoidance action is heard as contested matter, rather than adversary proceeding, and lien is avoided under §§ 522(h) and 544(a). "In this case, the Current Mortgage has been found not to have been properly executed and, therefore, not to be a legal charge on the interests of the Debtor in her residence. . . . Therefore, it could not provide actual or constructive notice to an attaching creditor of a possible claim or interest in the residence by the Creditor. . . . Although the Creditor was equitably subrogated to the rights of the holder of the Prior Mortgage for a portion of its claim . . ., the Prior Mortgage had been discharged of record prior to the Petition Date by a properly recorded discharge. A properly recorded discharge of a mortgage provides notice to subsequent purchasers and creditors of the release of an interest in real estate not a claim of an interest in the real estate.").
Sharpe v. Wells Fargo Home Mortgage (In re Sharpe), 391 B.R. 117 (Bankr. N.D. Ala. May 29, 2008) (Cohen) (In action against mortgage servicer and mortgagee for breach of contract, wrongful foreclosure, conversion, trespass, stay violation, fraud, unjust enrichment and breach of fiduciary duty, both debtors and lender breached contract—debtor, by being in default, and lender, by failing to give notice of acceleration prior to foreclosure. Further hearing is required to determine whether foreclosure was wrongful based upon price received at foreclosure sale: "whether the price paid by the mortgagee for the property so shocks the conscience that it raises a presumption of fraud, trickery, unfairness, or culpable mismanagement that could be considered wrongful foreclosure.").
Price v. America's Servicing Co. (In re Price), 388 B.R. 901 (Bankr. E.D. Ark. May 22, 2008) (Evans) (Mortgage servicer fails to show cause for relief from default on complaint alleging improper application of payments to insurance and taxes that debtors were paying directly under contract.).
In re Young, No. 07-10991-NPO, 2008 WL 4279966 (Bankr. N.D. Miss. May 9, 2008) (Olack) (Claim was not contingent or unliquidated because Mississippi preclusion principles bar relitigation of damages awarded by state court default judgment.).
In re Percolla, No. 04-15170-B-13, 2008 WL 1969584 (Bankr. E.D. Cal. May 6, 2008) (unpublished) (Lee) (Recovery of unclaimed funds is denied when mortgagee failed to show that it was still holder of unpaid debt three years after dismissal of bankruptcy case, debtors had no notice of unclaimed funds and debtors may be entitled to funds.).
Cunningham v. Dovenmuehle Mortgage, Inc. (In re Cunningham), Nos. 05-32951-SGJ-13, 07-03012, 2008 WL 1696756 (Bankr. N.D. Tex. Apr. 9, 2008) (Jernigan) (In Chapter 7 case, court awards $47,000 in damages plus $20,000 in attorney fees for wrongful foreclosure in prior Chapter 13 case. Under Texas law, foreclosure sale was not properly noticed to debtor, but court is unable to set aside foreclosure since third party purchased for value.).
In re Bouknight, 387 B.R. 337, 338 (Bankr. D.D.C. Mar. 20, 2008) (Teel) (Motion of funds locator for release of unclaimed funds is denied; actual creditor must file affidavit stating whether its claim is still owed. Mortgage creditor has burden to "demonstrate that it is entitled to the funds sought. . . . Although the record before the court demonstrates that GMAC Mortgage was at one time entitled to the funds, GMAC Mortgage has not demonstrated a present entitlement." Court was uncertain whether mortgage claim had been satisfied by foreclosure or otherwise.). Accord In re Johnson, No. 87-00778, 2008 WL 2338089 (Bankr. D.D.C. June 2, 2008) (Teel) (Motion of funds locator is denied pending affidavit from GMAC Mortgage that it is entitled to funds.).
Alvarado v. Washington Mut. Bank, F.A. (In re Alvarado), Nos. 02-56000-LMC, 07-5089-LMC, 2008 WL 783545, at *3 (Bankr. W.D. Tex. Mar. 19, 2008) (Leif Clark) (Mortgagee—defendant in adversary proceeding—waived jury trial right by participation in claims allowance process; creditor filed proof of claim and took "actions with respect to that claim," submitting itself to equitable jurisdiction of bankruptcy court.).
In re Bletsch, No. 07-17417, 2008 WL 657858, at *2 (Bankr. N.D. Ohio Mar. 6, 2008) (unpublished) (Harris) (Predicting that Ohio Supreme Court would adopt Restatement (Second) of Judgments, prepetition default judgment in foreclosure action in Common Pleas court is not entitled to preclusive effect in claims litigation because issues were not actually litigated.).
Brown v. Homecomings Fin., LLC (In re Brown), Nos. 06-02182-5-ATS, S-07-00108-5-AP, 2008 WL 545048 (Bankr. E.D.N.C. Feb. 27, 2008) (Small) (Amendment of adversary proceeding alleging damages from real estate transaction relates back, in part, to original complaint, but not as to defendant against whom statute of limitations has expired.).
In re Denaro, 383 B.R. 879 (Bankr. D.N.J. Jan. 24, 2008) (Kaplan) (Under New Jersey law, debtor is entitled to "'a fair market value credit to prevent a windfall'" to creditor that foreclosed at sheriff sale. Creditor's claim is adjusted based on fair market credit equal to sale price obtained at sheriff sale.).
Martin v. CitiFinancial, Inc. (In re Martin), 387 B.R. 307 (Bankr. S.D. Ga. Nov. 6, 2007) (Davis) (No private right of action exists under 18 U.S.C. § 152 for filing of fraudulent proof of claim, but bankruptcy court has core jurisdiction to address defective mortgage; mortgagee did not waive arbitration clause by filing proof of claim, and motion to compel arbitration is granted as to allegations that mortgagee intentionally misrepresented having security interest, forced debtor into bankruptcy by threatening foreclosure, inflicted emotional distress and defamed debtor. Defective mortgage cause of action is not subject to arbitration because bankruptcy estate is not "a 'party' to the arbitration agreement" and § 544 action is a core proceeding. Other causes of action are subject to arbitration because "Chapter 13 debtor 'stands in the shoes' of the pre-petition debtor under § 541 and can assert causes of action possessed by the debtor, 'but subject to the same defenses as could have been asserted by the defendant had the action been instituted by the debtor [prepetition].'" Under Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S. Ct. 2332, 96 L. Ed. 2d 185 (1987), "the party seeking to avoid enforcement of an otherwise applicable arbitration provision must demonstrate that there is an 'irreconcilable conflict' between the Federal Arbitration Act and the underlying purpose of the other federal statute in question.").
In re Scott, No. 05-16028-BKC-AJC, 2007 WL 3046745, at *4 (Bankr. S.D. Fla. Oct. 16, 2007) (In addressing unclaimed funds in bankruptcy cases, court suggests that unclaimed funds locators in "mortgage related indebtedness cases [should] . . . require an affidavit from the client for whom it is collecting the mortgage indebtedness stating that the creditor is the proper party and is owed the funds from the Debtor. The unclaimed funds locator should also check the Court docket to help determine whether there has been a refinance of the subject indebtedness indicating the secured lender may have been satisfied. Finally, although not required by applicable local rules, the unclaimed funds locator should include the Debtor and Debtor's counsel on the Application to Withdraw Funds.").
Andrews v. AmSouth Bank (In re Andrews), Nos. 01-42562-JJR-13, 06-40016-BGC, 2007 WL 2819523 (Bankr. N.D. Ala. Sept. 26, 2007) (Debtors' complaint that AmSouth Bank's debt should have been paid by Life Insurance Company of Alabama at death of codebtor is intertwined in claims allowance process, as counterclaim to AmSouth's proofs of claim, precluding debtors' request for jury trial.).
Rosetti v. Chase Home Fin. LLC (In re Rosetti), No. 07-04063-DML, 2007 WL 2669265 (Bankr. N.D. Tex. Sept. 6, 2007) (unpublished) (Lynn) (In debtor's adversary proceeding alleging that Chase Home Finance breached contractual obligations by improperly calculating escrow balance and breached fiduciary duty to debtor, Chase only had contractual obligations to debtor. Texas law provides no basis for punitive damages in causes of action that are merely contractual.).
In re Alston, No. 01-87477-PWB, 2007 WL 7143349 (Bankr. N.D. Ga. July 31, 2007) (Bonapfel) (Application of Sovereign Bank for unclaimed funds was denied with permission to amend application to demonstrate that debt had not been satisfied and that applicant was entitled to funds; amended motion must be served on debtor, debtor's attorney and trustee.).
Sanchez v. Ameriquest Mortgage Co. (In re Sanchez), 372 B.R. 289, 319 (Bankr. S.D. Tex. July 24, 2007) (Bohm) (Ameriquest's purchase of delinquent property tax claim from taxing authorities without filing notice violated Rule 3001(e)(2) and "is a fatal defect. The Defendant's purchase of the tax claim is therefore invalid as to this Chapter 13 case." Ameriquest's allowed proof of claim is subject to reconsideration based upon debtors' alleged lack of knowledge that Ameriquest used suspense accounts to pay prepetition arrearages. Such use may have overstated Ameriquest's original claim. At further trial, court wants proof of the use of suspense accounts and whether it led to overstatement of Ameriquest's claim.).
In re Reinhart, No. 05-25791REF, 2007 WL 2028893 (Bankr. E.D. Pa. July 11, 2007) (On debtor's objection to proof of claim of a party that purchased secured notes, claim will not be reduced by goodwill allegedly received by creditor, but creditor did not properly give credit for equipment repossessed, resulting in reduction of proof of claim from $356,505.61 to $32,230.61.).
In re Steve, No. 06-16453PM, 2007 WL 1810713 (Bankr. D. Md. June 20, 2007) (Co-obligor holds contingent claim for one half of deficiency that Wells Fargo will have upon sale of repossessed vehicle; court estimates deficiency claim and reconsiders codebtor's claim that was previously disallowed for failure to respond to debtor's objection.).
Arellano v. Montoya (In re Arellano), Nos. 13-06-11966 SL, 07-1024 S, 2007 WL 1746246, at *3 (Bankr. D.N.M. June 14, 2007) (unpublished) (Starzynski) (On Citifinancial's demand in adversary proceeding involving extent and validity of mortgage, arbitration is enforced. "Courts addressing the issue of whether arbitration inherently conflicts with the Bankruptcy Code distinguish between core and non-core proceedings. . . . In general, bankruptcy courts do not have the discretion to decline to enforce an arbitration agreement relating to a non-core proceeding.").
In re Gerathy, No. 04-52744, 2007 WL 1686694, at *5 (Bankr. E.D. Mich. June 12, 2007) (Claim allowed as secured in Chapter 13 could be reconsidered under § 502(j) after conversion to Chapter 7, when equitable mortgage valid between debtors and lender is not enforceable against Chapter 7 trustee who has status of bona fide purchaser. Mortgage had been released in error but was treated as secured in Chapter 13. After conversion, § 502(d) and (j) served as basis for Chapter 7 trustee's objection to secured claim without necessity of adversary proceeding. "Section 502(j) provides an equitable remedy for challenging the status of a claim which was previously allowed or disallowed," Chapter 7 trustee cannot recover payments made on secured claim during Chapter 13.).
In re Pitkin, No. 04-55963 ASW, 2007 WL 1140681 (Bankr. N.D. Cal. Apr. 13, 2007) (Former employee of corporation had no claim against debtor personally.).
Hutchins v. Rogers (In re Rogers), Nos. 99-11516 (GMB), 04-2727(GMB), 2007 WL 1041682 (Bankr. D.N.J. Mar. 29, 2007) (unpublished) (Debtor defrauded plaintiff in acquiring home on eve of foreclosure for no consideration; claim reduced to monetary damages, with court applying unjust enrichment principles to divide equity from sale 49% to plaintiff and 51% to debtor.).
In re Jackson, No. 06-10655, 2007 WL 954751 (Bankr. E.D. Tenn. Mar. 29, 2007) (unpublished) (Stinnett) (Pawnbroker's filing of secured proof of claim accepted plan that treated pawnbroker as secured without reference to state law redemption.).
In re Fries, No. 06-11424PM, 2007 WL 1073868 (Bankr. D. Md. Jan. 17, 2007) (Finding that it would be no more expensive than an adversary proceeding, court lifted stay to permit arbitration to continue.).
Dreliouch v. Mataev (In re Dreliouch), 359 B.R. 9 (Bankr. D. Mass. Dec. 28, 2006) (Disputed facts precluded summary judgment when debtor's objection to secured proof of claim was combined with removed state suit in which debtor sued creditors on various fraud counts, all related to property located in the Czech Republic.).
In re Sims, 358 B.R. 217 (Bankr. E.D. Pa. Dec. 28, 2006) (After settlement of adversary proceeding contesting validity of foreclosure sale, mortgagee's proof of claim allowed to extent of what it paid at foreclosure sale but disallowed as to some fees and unverified payments made to city and other parties.).
In re Barajas, No. 06-10598-B-13, 2006 WL 3826754 (Bankr. E.D. Cal. Dec. 27, 2006) (unpublished) (Confirmation of plan that pays small percentage of unliquidated tort claim does not require liquidation or estimation of claim because debtors do not object to claim; claim will be allowed as filed, then paid according to plan.).
Hurst v. U.S. Bank (In re Hurst), 357 B.R. 782, 784 (Bankr. W.D. Ark. Dec. 15, 2006) (Mixon) (Debtor's objection to car lender's deficiency claim is frivolous because debtor failed to state a coherent objection and "cannot make a valid argument that the filing of a proof of claim . . . violates the automatic stay.").
In re McCoy, 355 B.R. 69 (Bankr. N.D. Ill. Nov. 16, 2006) (Mutual Bank and its employee who notarized forged signature of debtor's spouse did not have claims for reimbursement and contribution as defined by § 502(e)(1).).
In re Welsh, No. 06-10831ELF, 2006 WL 3859233 (Bankr. E.D. Pa. Oct. 27, 2006) (unpublished) (Citifinancial proof of claim is reduced by amount shown on Form 1099-C representing cancellation of indebtedness income.).
In re Bednar, No. 05-95419, 2006 WL 2989271 (Bankr. C.D. Ill. Oct. 19, 2006) (unpublished) (Mortgage holder directed to file amended proof of claim that shows precise amount of prepetition arrearage and amount of postpetition payments that will become due during plan.).
In re Rodriguez, No. 03-30081-BJH-13, 2006 WL 2385246 (Bankr. N.D. Tex. July 17, 2006) (unpublished) (Part of debt secured by mortgage was due a decade before petition and is not allowable because barred by Texas statute of limitations.).
In re Scott, 346 B.R. 557 (Bankr. N.D. Ga. July 11, 2006) (Mortgage holder must prove that it is still owed an arrearage before it can recover disbursement that it failed to claim during Chapter 13 case and that was paid into registry of unclaimed funds consistent with § 347(a).).
In re Ellis, 345 B.R. 11 (Bankr. D. Mass. June 21, 2006) (Although security interest in assignment of lottery proceeds was unenforceable under Massachusetts law (see In re Fraden, 317 B.R. 24 (Bankr. D. Mass. 2004)), lender that took unenforceable security interest had allowable unsecured claim based on Colorado default judgment.).
In re Rivera, 342 B.R. 435 (Bankr. D.N.J. May 25, 2006) (Stern) (Law firm's use of pre-signed "certifications" in support of motions for relief from stay violated Bankruptcy Rule 9011 and subjected firm to fines in excess of $125,000; although data supplied by mortgage servicer may have been more or less accurate, pre-signed certifications were not based on personal knowledge, many were signed by former employees or employees without authority and use of pre-signed forms was unreasonable even if underlying data were accurate. Law firm was enjoined from use of pre-signed certifications, and professional responsibility issues were referred for further investigation. Opinion contains detailed examination of mortgage servicer processing of defaults in Chapter 13 cases and use of "captive" law firm to provide national network of local attorneys using pre-signed "certifications" to support motions for relief from stay in Chapter 13 cases.).
Holler v. Fairbanks Capital Corp. Servicing Ctr. (In re Holler), 342 B.R. 212 (Bankr. W.D. Pa. May 15, 2006) (Citing In re Knapper, 407 F.3d 573 (3d Cir. 2005), Rooker-Feldman doctrine precludes subject matter jurisdiction to consider Chapter 13 debtor's challenge to validity of prepetition foreclosure judgment that was not appealed; claim that notice was insufficient had to be raised in state court action and could not be raised collaterally as an objection to mortgage holder's claim in subsequent Chapter 13 case.).
In re Drown, 340 B.R. 428 (Bankr. D. Mass. Apr. 3, 2006) (Debtor, a registered sanitarian, gave false information in a septic plan provided to creditor, a home builder, giving rise to creditor's claim for negligent misrepresentation, but under Massachusetts' law the creditor's own negligence was primary cause for loss.).
In re Vela, No. 05-51081-RLJ-13, 2006 WL 6544155 (Bankr. N.D. Tex. Mar. 27, 2006) (Jones) (Objection to bank's secured claim was sustained, but unsecured claim was allowed when collateral had been lost through trade, debtor did not sign new contract, but debtor had assumed original liability in marital dissolution agreement. Bank's request to establish constructive trust lien on substituted vehicle would require adversary proceeding instead of response to claim objection.).
In re Tittle, 346 B.R. 684 (Bankr. E.D. Va. Mar. 20, 2006) (Landlord's judgment lien for unpaid rent is limited by § 502(b)(6) to capped amount of its allowable rent claim.).
In re Shipman, No. 05-20269 (NLW), 2006 WL 4454372 (Bankr. D.N.J. Feb. 7, 2006) (unpublished) (Creditor that purchased tax sale certificate could not recover $1,500 premium paid to purchase certificate. Premium did not qualify as debt since under New Jersey law it was not included in amount necessary for debtors to redeem.).
Patrick v. Dell Fin. Servs., L.P. (In re Patrick), 344 B.R. 56 (Bankr. M.D. Pa. Dec. 8, 2005) (Adversary proceeding alleging that Dell filed overstated secured claims in bankruptcy cases survives motion to dismiss to extent complaint seeks to disallow Dell's claims or to determine extent of secured claims; complaint is dismissed to extent it asserts independent cause of action under § 502 or § 105.).
In re Marks, No. 05-50026, 2005 WL 4799326, at *3-*4 (Bankr. W.D. La. Nov. 30, 2005) (unpublished) (Schiff) ($105 fee for "Brokers Price Option"—"a drive-by appraisal performed to give a creditor a general idea of the value of the property"—is disallowed. "The court does not believe that the BPO is reasonable. The BPO is not used during the foreclosure proceeding but only by the creditor itself. . . . The addition of fees for a drive-by appraisal which merely gives the creditor some minor comfort is not reasonable.").
In re Johnson, 343 B.R. 281 (Bankr. M.D. Fla. Nov. 21, 2005) (Case reopened to enforce settlement of disputed claim, and debtor ordered to pay settlement.).
In re Duback, 330 B.R. 337 (Bankr. D.R.I. Aug. 15, 2005) (Votolato) (Under Rhode Island law, mortgagee that obtained monetary judgment did not waive right to foreclose or lose lien under doctrine of merger, and error in mortgage description does not void otherwise valid mortgage. Debtors' objection to claim overruled.).
In re Agcaoili, No. 00-04514, 2005 WL 3964430 (Bankr. D. Haw. Aug. 3, 2005) (unpublished) (After approval of refinancing, in dispute over amount owed to Ocwen Federal Savings Bank, the mortgage servicing agent, Ocwen admitted that it demanded incorrect payoff amount and that its computerized system did not permit proper accounting of Chapter 13 payments, resulting in sanctions against Ocwen for debtors' attorney fees of $2,879.74.).
Al-Sedah v. Alabama Dep't of Revenue (In re Al-Sadah), 347 B.R. 901 (Bankr. N.D. Ala. July 19, 2005) (Rooker-Feldman doctrine precludes claim objection when final order was entered prepetition by administrative law judge determining debtor's liability for state sales taxes.).
In re Hopkins, 328 B.R. 575 (Bankr. D. Utah July 18, 2005) (Filing of a proof of claim and a motion for relief in a Chapter 13 case satisfies Utah's One Action Rule, and no separate adversary proceeding or lawsuit need be filed to enforce a deficiency. The Chapter 13 debtor had pledged her home and development property to secure a loan to the credit union. After the credit union successfully foreclosed on the development property, the debtor argued that state law, requiring an assertion of a deficiency to be made within three months after foreclosure, had not been satisfied and the pursuit of a deficiency should be denied. The court disagreed, noting that the filing of a proof of claim and the filing of a motion for relief relating to the property was sufficient to put the debtor on notice of the creditor's intent to collect on the deficiency, all that is required under state law.).
In re Ferguson, 326 B.R. 419 (Bankr. N.D. Ohio May 24, 2005) (Claim for $568 for services provided under Foreclosure Services Agreement is disallowed because provider engaged in unauthorized practice of law and services caused harm to debtor, resulting in increased mortgage-related costs that must be paid in plan.).
In re Stetar, 323 B.R. 646 (Bankr. W.D. Pa. Apr. 21, 2005) (Chapter 13 debtor's objection to claim filed by her brother is sustained because brother's claim was previously rejected by state Orphans' Court. State court rejected brother's claim as one based on a mistake of law while acting in a fiduciary capacity for which the fiduciary has no right to recovery. Alternatively, brother's claim was barred by collateral estoppel.).
In re Goodwin, 325 B.R. 328 (Bankr. M.D. Fla. Apr. 20, 2005) (On debtor's objection to claim filed by holders of nondischargeability judgment from prior Chapter 7 case, claimants' judgment had been domesticated in Florida and was still valid under applicable statute of limitations.).
In re Dunbar, No. 03-GK-03506-PMG, 2005 WL 852585 (Bankr. M.D. Fla. Mar. 30, 2005) (unpublished) (Glenn) (With the exception of $413.54, Wells Fargo/Norwest Mortgage accounted for all payments in the debtor's prior Chapter 13 case and "other fees" in the amount of $4,016.33 charged against debtor's account for foreclosure costs in the current bankruptcy case.).
Wilson v. Smith (In re Smith), 321 B.R. 75 (Bankr. M.D. Fla. Mar. 3, 2005) (Unliquidated claims against Chapter 13 debtor for professional negligence, constructive fraud and breach of fiduciary duties are estimated by the bankruptcy court at $449,850 and $172,118.).
In re Delano, No. 04-20280, 2004 WL 3255239 (Bankr. W.D.N.Y. Nov. 10, 2004) (unpublished) (Objection to claim of creditor of debtor's corporation is sustained when claimant failed to introduce any credible proof of valid claim against debtor.).
In re Loomis, No. 03-03318, 2004 WL 4960372 (Bankr. D. Idaho Feb. 4, 2004) (unpublished) (Stipulated state court judgment precludes debtors' objection to claim of credit union; with respect to other creditors, state court did not establish that debtor was obligated in any fixed amount, thus stipulated judgment was not preclusive of objection.).
In re Fabos, No. 02-00484, 2003 WL 25273853 (Bankr. D. Idaho Mar. 6, 2003) (unpublished) (Tender of prepetition check with memo line "final payoff" was not accord and satisfaction because both debtor and creditor were under mistaken belief that debtor was tendering payment in full; balance due on debt was allowable claim in Chapter 13 case.).
In re Croner, No. 02-02441, 2003 WL 25273858 (Bankr. D. Idaho Jan. 29, 2003) (unpublished) (Debtor is personally liable for claims of title insurance companies against debtor's construction business because debtor personally guaranteed those debts.).
Jackson v. First Nat'l Bank of Louisville (In re Jackson), No. 89-1076, 1990 WL 10625270 (Bankr. S.D. Ga. June 5, 1990) (Davis) (Putative class action, objecting to proofs of claim and seeking attorney fees on behalf of class, was dismissed when debtor/plaintiff held claim against only one member of defendant class and lacked standing to sue other defendants.).