Wood-Lee v. Lee (In re Lee) (Case No. 05-63159-WA4-7; A.P. No. 05-06088) 03/13/2006
The Court declared debts owed by the Debtor ex-husband to the creditor ex-wife, which arose from a separation agreement, non-dischargeable under section 523(a)(5).
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The Court declared debts owed by the Debtor ex-husband to the creditor ex-wife, which arose from a separation agreement, non-dischargeable under section 523(a)(5).
The court denied the Debtors' application for waiver of the appeal fee pursuant to 28 U.S.C. § 1930(f) because that subsection only applies to a case filed on or after October 17, 2005.
The United States Trustee filed a motion to dismiss this case as an abuse of the provisions of Chapter 7 of the Bankruptcy Code, pursuant to 11 U.S.C. § 707(b). Section 707(b)(1) provides that a court may dismiss an individual case under Chapter 7 if (1) the debtor’s debts are primarily consumer debts and (2) it would be an abuse of the provisions of Chapter 7 of the Bankruptcy Code to grant relief to the debtor. Section 707(b)(2) provides that abuse is presumed if a debtor's net monthly income exceeds a certain threshold amount as determined by the means test. Section 707(b)(3)(B) provides that if the presumption in Section 707(b)(2) does not arise or is rebutted, the court must consider the totality of the debtor's financial circumstances in determining whether proceeding in Chapter 7 would be an abuse. The United States Trustee has the burden of proof to prove by a preponderance of the evidence that allowing the Debtor to continue in Chapter 7 would constitute abuse.
The Court, applying the factors enumerated by the Fourth Circuit in Green v. Staples (In re Green), 934 F.2d 568 (4th Cir. 1991), concluded that it would not be a substantial abuse to permit the Debtor to continue under Chapter 7. The Debtors do not have sufficient income to fund a Chapter 13 plan, they have experienced at least one financial trauma, and there is no showing of bad faith. Accordingly, the Court denied the United States Trustee's motion to dismiss this case for abuse.
The Court reopened the Chapter 7 Debtor's case after discharge because the Debtor was not properly noticed to appear at a reaffirmation hearing during the pendency of the case.
In a discovery dispute involving the U.S. Trustee's motion to deny the Debtor's discharge, the Court granted the Debtor's motion to compel the U.S. Trustee to disclose all material facts supporting the allegedly fraudulent conduct.
The Court declared a debt secured by a first deed of trust on the Chapter 13 Debtor's real property a wholly unsecured claim for the pendency of the case under section 522(f)(1)(A), but declined to declare the lien void until the Debtor received a discharge.
The courts sanctioned Debtor's counsel for failing to determine and communicate facts in a timely manner to the Chapter 13 Trustee, as ordered by the court.
The court held that the two year statutory period in 11 U.S.C. § 546(a)(1)(A) is computed by calendar months according to the anniversary date rule, and is not computed by days. Therefore, the Trustee's complaint was timely filed.
The court held that the two year statutory period in 11 U.S.C. section 546(a)(1)(A) is computed by calendar months according to the anniversary date rule; not by days. Therefore, the Trustee's complaint was timely filed.
The court held that the two year statutory period in 11 U.S.C. section 546(a)(1)(A) is computed by calendar months according to the anniversary date rule; not by days. Therefore, the Trustee's complaint was timely filed.