Complaint to Determine Dischargeability and for Willful Violation

[tigergem]

I was just wondering...If you were still in your 13 when receiving this would the trustee take your settlement?

Absolutely yes.

In re McIntyre

U. S. Bankruptcy Court for the District of Oregon, Case No. 08-34900-tmb13
November 13, 2009


Last week Judge Trish Brown ruled in this unpublished opinion that attorney fees paid by a creditor, in settlement of an adversary proceeding brought by Chapter 13 debtors against the creditor for its violations of the automatic stay, could be paid directly to the attorney instead of to the Chapter 13 trustee. Although such fees are property of the estate, they vest in the debtor unless stated otherwise by a modified plan, including one proposed by the trustee. Absent that here, debtors could pay those fees directly to their attorney.

Facts
After the confirmation of their Chapter 13 plan Debtors, through their attorney, M. Caroline Cantrell, filed an adversary proceeding against a bank for post-petition violations of the automatic stay. A few months later this matter was settled. The settlement agreement contained a confidentiality clause, but Judge Brown's opinion reveals that the agreement provided for creditor's payment of damages to debtors as well as their attorney fees incurred in the proceeding.

Ms. Cantrell then filed a "Motion to Pay Fees Direct," with a fee itemization. She argued that because the adversary proceeding dealt with post-petition stay violations, the fees earned need not be paid to the trustee. The trustee, Brian D. Lynch, objected, countering that the fees were property of the estate and should be distributed through the Chapter 13 plan. Very shortly thereafter, Debtors filed an amended plan "which specifically allowed them to keep the settlement proceeds to purchase a car." (The opinion does not state if this plan referred specifically to the attorney fee portion of the settlement.) The trustee did not object to this amended plan.
Except as otherwise provided in the plan or the order confirming the plan, the confirmation of a plan vests all of the property of the estate in the debtor.

Although the plan had no language reserving any assets in the estate, the judge referred to a prior reported local opinion which had held that avoided transfers and tax refunds do not revest to the debtor. But any other assets, unless referred to in the plan, do revest to the debtor.http://blsbulletins.blogspot.com/

[tigergem]

Ankle biter.

Yes, you are thinking wrong. The only way an over the median income filer can confirm a plan for less than 60 months, is to pay 100%. Lots of caselaw supporting the fact that the Code reads that you may confirm a plan of not less than 60 months if you are an above median income filer, unless your plan Pays 100% of all allowed unsecured claims.

I think that's in 11 USC 1325 somewhere, but don't quote me. Too lazy to look it up!

UNDER median! lol! UNDER!

Need more coffee?

[justbroke]

nah it was Bayshore National Bank of LaPorte.

Ankle biter.

I'm not thinking wrong, am I? That being under median, I can modify down to 36 months? Or anything in between 36 and 60? So long as my payout to unsecured doesn't become less, is what I have understood.

Yes, you are thinking wrong. The only way an over the median income filer can confirm a plan for less than 60 months, is to pay 100%. Lots of caselaw supporting the fact that the Code reads that you may confirm a plan of not less than 60 months if you are an above median income filer, unless your plan Pays 100% of all allowed unsecured claims.

I think that's in 11 USC 1325 somewhere, but don't quote me. Too lazy to look it up!

[tigergem]

Yes, pre-BAPCPA cases could be paid off based on the Plan base. I haven't read ONE post-BAPCPA case where paying anything short of 100% of the allowed unsecured claims, was allowed to be discharged.

The creditor was probably eCast or B-Real (or B-Line).

nah it was Bayshore National Bank of LaPorte.

I'm not thinking wrong, am I? That being under median, I can modify down to 36 months? Or anything in between 36 and 60? So long as my payout to unsecured doesn't become less, is what I have understood.

[justbroke]

Ok. I found it. It was a pre-BAPCA case, and she paid it off in the 27th month. There was a creditor objection, but the judge said it was a lame objection.

Yes, pre-BAPCPA cases could be paid off based on the Plan base. I haven't read ONE post-BAPCPA case where paying anything short of 100% of the allowed unsecured claims, was allowed to be discharged.

The creditor was probably eCast or B-Real (or B-Line).

[tigergem]

interesting, but "how" early? The old requirement (pre-BAPCPA) was that the debtor was in the Plan at least 36 months.

I'd have to look at the case again, because I don't specifically remember, but it seems to me it was only 24 months or so, and not pre-BAPCA. What I do recall about it however, is that a lady in a CH 13 received a gift from her father for the exact amount needed to pay off her plan, with that specific intent, and she did so, and the Trustee objected, and my judge allowed her discharge.

I guess I am obsessed with this issue, (maybe? ), because every time I run up on a hypothetical new financial situation I run it through my plan planner and see how it is going to affect my Ch 13 payment. I am admittedly a Scrooge and trying to keep the most for myself and the least possible to my creditors.

Well. I thought I had it all figured out for the new job coming up in August. Perfectly even. Even if I can't argue to keep some of my earnings for the dental work that I need to get done, the amount I might have to pay to the Trustee will be enough to modify my plan down to a 36 month plan, still with <1% to unsecured. (Since I am under median, I reckon anything over 36 months is a bonus, right?)

Then come to figure out that "like it or not" I am going to get at least a $400.00 tax credit on next year's income taxes that the Trustee is going to snag "in addition to the base amount". Fiddlesticks. Not so perfect, I guess. Oh well. I tried. It really can't be helped. It's a credit, (there won't be any refund!) so not money out of my pocket, per se, but not money IN my pocket, either.

================================================== ==

Ok. I found it. It was a pre-BAPCA case, and she paid it off in the 27th month. There was a creditor objection, but the judge said it was a lame objection.

[justbroke]

I was, however, encouraged to find out that my judge supports discharge in less time if the base amount of the plan is paid early.

interesting, but "how" early? The old requirement (pre-BAPCPA) was that the debtor was in the Plan at least 36 months.

[tigergem]

Right, I couldn't find anything about that either.

I was, however, encouraged to find out that my judge supports discharge in less time if the base amount of the plan is paid early.

[justbroke]

That goes specifically to the Trustee filing the Violation by motion or complaint. The Trustee is not entitled to punitive damages. Now, as to whether punitive damages awarded to the debtor while in an active Chapter 13 are property of the Estate and/or considered "disposable" income... I don't know.

[tigergem]

I was just wondering...If you were still in your 13 when receiving this would the trustee take your settlement?

Absolutely yes.

[tigergem]

Good luck to you tigergem!
You Pro Se filers cerainly have your work cut out for you.

Meh. By my own hand. I don't reckon anybody is twisting my arm and making me do this. I could chicken out and give it up. Yep, I could. I'm just your every day run of the mill masochist. A regular glutton for punishment. Yep dat's me.

[vicmost]

Good luck to you tigergem!
You Pro Se filers cerainly have your work cut out for you.

[tigergem]

Yeah, I'm still reading, going in the appropriate circles, but still reading. My head is spinning. I thought I read the 7000 series last night. But I kind of set this aside for a little while today, to spin up a quick objection to a different claim, since I have to have all of my objections in this week, and this... maybe not so much. Except to the extent that my Motion "also constitutes an objection to the Creditor's Claim", but that isn't the crucial part of the Motion, so it can wait.

[justbroke]

You really need to read FRBP 7004 and maybe a local rule for it. Most procedures for Adversary Proceedings (APs) is in the FRBP 7000 series, and incorporate the Federal Rules of Civil Procedure (FRCP) alot! (So much so, that some of the FRBP's just read like "Rule 3 F.R.Civ.P. applies in adversary proceedings."

In my District, you must serve the summons, complaint and the Notice of Hearing on the defendant. Your local rules may differ.

[tigergem]

APs are not contested matters. They are trial matters. As such, there is no "proposed" order included with them.

You should find out what your District requires. Our Judges in Florida publish their courtroom rules and what the Judges like. Not all Judges like you to submit Memorandum of Law (which is what we call it here), unless the Judge asks for it. They don't like to be inundated with paper. Also, some things they only want submitted to Chambers and not "filed". Yes, this is why Pro Se debtors clog up the system, but most would never even contemplate filing a complaint (Adversary Proceeding)!

Gotcha. This likely falls under one of those unwritten rules of local procedure. There's a lot of those. I should write that book. I get that my judge is no nonsense, K.I.S.S. and doesn't even seem to require the Jurisdiction and Venue and Core Proceeding stuff to be specified in Motions. FORTHWITH, I have tried to comply with his plain language style. I pulled from PACER some of the biggest hottest APs that my judge ruled on, and none of them had P&A filed with them. On the other hand, historically in my own case, I seem to be held to a stricter standard of compliance than most attorneys and even the Trustee, and that kinda irks me. So ok, tomorrow morning, I will call the clerk and ask about the Judge's preference.

You file the complaint FIRST. The Clerk of the Court issues a summons. (Please check your District. In my District, CM/ECF automatically issues the summons and you can print it from PACER. In some Districts, YOU have to write the summons and submit it with the complaint so that the Clerk can sign it.) Then you also wait for the Notice of Hearing (Scheduling Conference). Together with the Summons, the Notice of Hearing are served upon the defendant within 10 days. This is because the defendant only has 30 days from the filing of the complaint, to answer the complaint or be found in default.

Right, I already got that "if the Summons is filled out correctly, the Clerk will issue it." I'll double check, but I saw that.

But please clarify this bit: I wait for the Notice of Hearing to serve the Complaint? (along with the Summons?)

Or file the Complaint, serve it, and then wait for the Notice of Hearing to serve the Summons?

For government entities is 35 days. And there are special provisions in FRCP for serving a local district civil process clerk of the US Attorney General's office.

This procedural stuff will kill you if you don't do it right! The defendant will ask for a dismissal for simple issues with service of process which is much more important in the adversary proceeding than I've found in general contested matters.

No kidding, killing me is right. I had no idea the amount of angst this would cause, but now that I have the dam thing written, I guess I might as well go for it. And so much screen time is giving me migraines, about every 8 hours. I appreciate your help SO much.