In re Pearl, 394 B.R. 309, 314 (Bankr. N.D.N.Y. 2008) (Gerling) (Debtor with CMI greater than applicable median family income is entitled to Local Standards transportation ownership expense for car that is not subject to debt. “This Court concurs with the view that deferring to the approach taken by the IRS, . . . would to a certain extent enable it to become ‘a rule-making body for bankruptcy law,’ thereby assigning a legislative function to an agency. . . . [F]or purposes of the Bankruptcy Code, the Local Standard amounts are fixed allowances, rather than caps, and are applicable to the Debtors in this case, despite the fact that there is no lien on their second vehicle. This comports with the intention of Congress to eliminate the discretion of the courts[.]”).

In re Lane, 394 B.R. 248 (Bankr. D. Mass. 2008) (Hillman) (Citing In re Young, 392 B.R. 6 (Bankr. D. Mass. 2008), debtor with CMI greater than applicable median family income is allowed Local Standards transportation ownership expense for car that is not subject to lien or lease.).
See Also: Chapter 7 Bankruptcy

In re Lucio, No. 04-81962-G3-13, 2008 WL 5479110 (Bankr. S.D. Tex. Nov. 21, 2008) (Letitia Clark) (Mortgage creditor that participated in confirmation was aware of, and bound by, local Chapter 13 procedures for administration of home mortgages that required creditor to give notice of any payment adjustments to debtor, debtor’s counsel and trustee; failure to give required notice limits reimbursement for forced-placed insurance to same amount as prior year,).

In re Kuhasz, No. 07-20282, 2008 WL 5539788, at *4 (Bankr. D. Kan. Nov. 19, 2008) (Somers) (Debtors are bound by confirmation of plan that pays car lender in full and can’t use claim objection or plan modification to delete negative equity from secured claim. “[P]ost-confirmation change in applicable bankruptcy law is not sufficient to warrant a revocation or modification ofthe terms ofa confirmed and operating Chapter 13 plan.”).

In re Povey, No. 07-80076, 2008 WL 1376271, at *5, *6 (Bankr. E.D. Okla. Apr. 9, 2008) (Cornish) (Failure to attach documents proving assignment of claim is fatal to allowance. Creditor “failed to comply with Bankruptcy Rule 3001 (e) [by] not attach[ing] the writings that the claims were based on.” Trustee asserted valid substantive objection since “[t]he assignment documents fail to establish that the original debts were transferred to Roundup. The appendices and schedules referenced in the documents were not provided, and therefore there is no way to determine that the original debts were part of the assignment documents.” Section 3001(e)(l) “provides for who may file a claim under… circumstances [involving claims transferred before proof of claim is filed], not what evidence or documentary support is required to prove its ownership of the claim.”).

See Also: Bankruptcy Lawyers New York

In re Tompkins, 391 B.R. 560,563-64 (Bankr. S.D.N.Y. 2008) (Morris) (Reaffirming//? rePinti, 363 B.R. 369 (Bankr. S.D.N.Y. 2007), and rejecting contrary decisions from Fourth, Sixth, Seventh, Eighth and Tenth Circuits, 910-day PMSI car can be surrendered in full satisfaction because bankruptcy law, not state law, determines there is no unsecured deficiency claim when debt is fully secured under hanging sentence. “This Court’s decision in Pinti addressed and rejected arguments that the right to an unsecured deficiency claim is determined by state law, as opposed to the Bankruptcy Code…. Although other courts have disagreed, they have done so based upon arguments that this Court considered and rejected in Pinti. . . . [T]he ‘hanging paragraph’ appears to be a ‘qualifying or contrary provision’ to the general principles set forth in [Travelers Casualty & Surety Co. v. Pacific Gas & Electric Co., 549 U.S. 443,127 S. Ct. 1199,167 L. Ed. 2d 178 (2007),] and [Butner v. United States, 440 U.S. 48, 99 S. Ct. 914, 59 L. Ed. 2d 136 (1979)].”).

Schultz v. United States, 529 F.3d 343, 350-53 (6th Cir. 2008) (Ryan, Siler, Cole) (That disposable income calculation in § 1325(b)(3) uses “means test” which includes consideration of median income based on state and county in which debtor resides does not render BAPCPA nonuniform for purposes of Article 1, § 8, of the Constitution. “[The Supreme Court] . . . has consistently described the Bankruptcy Clause’s uniformity requirement as ‘geographical, and not personal.’ . . . [I]t allows different effects in various states due to dissimilarities in state law, so long as the federal law applies uniformly among classes of debtors. . . . [W]e conclude that the BAPCPA is a constitutionally uniform law. Congress is allowed to distinguish among classes of debtors, and to treat categories of debtors differently, whether it be through the incorporation of varying state laws …. [T]he BAPCPA is uniform in form: all debtors whose income is above the median family income are treated alike, as are all debtors whose income falls below. The resulting differences based on the state in which the debtor resides are analytically indistinguishable from the differences resulting from the incorporation of various state laws… . Congress may permissibly address regional variations . . . based on either state laws or federal statistics.”).

In re Namie, 395 B.R. 594, 597-98 (Bankr. D.S.C. 2008) (Waites) (Expenses allowed by § 1325(b)(3) for debtor with CMI greater than applicable median family income are subject to “reasonably necessary” standard; $5,376.54 per month to maintain and cure default with respect to home mortgage is not reasonable or necessary. “[Though 11 U.S.C § 1325(b)(3) allows for the categorical deduction of certain actual expenses, those expenses must be ‘reasonably necessary’ regardless of whether Debtor is above the median income…. Debtor bears the ultimate burden of proving that the claimed ‘actual expense,’ as allowed by the means test, is actual, reasonable, and necessary…. Debtor has offered no convincing evidence that the proposed housing expense is reasonably necessary for a family of two …. Debtor’s housing expense is more than five times that allowed by the I.R.S. and is not reasonable or necessary considering Debtor’s family size, income level, location, and lack of other special needs.”).

See Also: Bankruptcy Laywers Austin

Daimlerchrysler Fin. Servs Ams., LLC v. Rivera (In re Rivera), Nos. 07-11996, 1:08-CV-21-TS, 2008 WL 1957896, at *5 (N.D. Ind. May 2, 2008) (Springmann) (Plan that fails to specify monthly payment to car lender does not satisfy equal-payment or adequate protection requirements in § 1325(a)(5)(B)(iii); not sufficient that plan provided for payment in full of debt with 10% interest but left calculation of actual monthly distribution to trustee’s “practice of administering” cases. “[T]he proposed plan contemplates periodic payments to the Appellant on an allowed secured claim …. However, the amount of those payments is not specifically set forth. Instead, it was left to the discretion of the trustee to make periodic payments to the Appellant. Thus, the plan does not provide that the trustee’s distributions to the holder of the allowed secured claim be in ‘equal monthly amounts.’… Nothing in the current plan would prevent the trustee from backloading payments to the Appellant or from making disbursements other than on a monthly basis. . . . [TJhat payments need not extend over the entire life of the plan does not explain or justify the complete absence of equal monthly payments in their proposed plan. . . . That the trustee may make distributions to the Appellant on a monthly basis because that is the trustee’s ‘practice of administrating’ cases does not guarantee such. . . . Nor does it guarantee equal payments. . .. [UJnless the amount is provided in the plan, the abuses the BAPCPA was enacted to address are still possible.”).

Definition of the Automatic Stay: A statutory injunction that protects (a) the debtor and (b) the property of the estate. There are many exceptions to the stay and a creditor may seek relief from the stay. The stay continues until terminated or until the case ends. At the end of the case, the automatic stay is transformed into the statutory injunction of the discharge.

1. The Stay
The filing of a bankruptcy petition triggers an “automatic stay” that brings a halt to just about anything the creditor might do to liquidate its claim. [362 (a)] Indeed, it is one very good reason to file bankruptcy; the stay brings the collection efforts to a screeching, grinding halt. A lot of debtors file bankruptcy to stop a mortgage foreclosure or a tax lien sale. Some file to stop a lawsuit in its tracks. The way to understand the stay is to recognize that it does two jobs:

• It protects the debtor from lawsuits, dunning letters, phone calls and whatever else might pursue him did he did not file. It gives him a chance to get on with his life or, in reorganization cases, a chance to concentrate on a “plan.”

• It protects the property of the estate from cherry-picking so that the trustee can superintend the liquidation or, as appropriate, preserve the going-concern value in a reorganization.

Think of the stay as a kind of “statutory injunction” (though purists would say there is no such thing; an injunction comes not from the legislature, but from the court).

If the stay continues through the case, then it teams up with the debtor’s discharge to protect the debtor indefinitely. Creditors may seek and sometimes get “relief from the stay.” Most creditors who seek and get relief from the stay are secured creditors trying to foreclose, so we deal with that topic below. See IV C (3).

See Also Bankruptcy Lawyers Boston

Cosigners and Joint Obligors Are Protected
Griffin v. Griffin (In re Griffin), No. 05-8020,2008 WL 2265178 (B.A.P. 6th Cir. June 4, 2008) (unpublished) (Aug, Fulton, Parsons) (When plan scheduled brother as codebtor but did not disclose contention that brother was owner of vehicle, complaint alleging that brother owned vehicle and that it was improperly repossessed upon debtor’s default fails to state claim upon which relief could be granted.).