1. Rajala v. Community Bank of Wichita (In re: Kierl);
Case
No. 06-21391; Adv. Case No. 07-6046; Chapter 7 (Somers)(November 7, 2007)
MEMORANDUM OPINION AND ORDER GRANTING CHAPTER 7 TRUSTEE’S COMPLAINT
TO RECOVER PREFERENTAL TRANSFER AND FINDING COUNT ONE OF THIRD PARTY COMPLAINT
MOOT
•11 U.S.C. § 547
•11 U.S.C. § 550
•11 U.S.C. § 551
•K.S.A. § 8-135
•K.S.A. § 84-9-311
•K.S.A. § 84-9-516
Facts:
Community Bank of Wichita (“Bank”) loaned the debtors money in
December 2005, taking an interest in a 2003 GMC Yukon Denali as partial security
for that loan. In January 2006, the Bank attempted to note its lien on the
title of the Yukon by delivering a title application to the Sedgwick County
Treasurer. Twenty days later, Sedgwick County rejected the Bank’s title
application requesting that the debtors pay their delinquent taxes first. The
debtors, however, owed no such taxes. After several unsuccessful attempts to
have the debtors pay the delinquent taxes, the Bank paid the delinquent taxes
and submitted its title application. The Kansas Department of Revenue noted
the Bank’s lien on the Yukon’s title on July 11, 2006. The debtors
filed bankruptcy on September 7, 2006.
The Trustee filed a motion to avoid
the Bank’s lien as a preferential
transfer, arguing that the Bank failed to perfect within the 30-day time period
required under § 547 and that the Bank perfected its interest in the Denali
within 90 days of the filing of the bankruptcy. The Bank countered by arguing
that it perfected its lien in January when it delivered its title application
to the Sedgwick County.
Holding:
The Court found that the Bank perfected its interest
in July, within the 90-day look-back period in 11 U.S.C. § 547. The Court reiterated the long-standing
rule in Kansas that a creditor can only perfect its interest in a vehicle by
noting its lien on the title to the motor vehicle. The Court determined that
rule meant perfection only occurred upon the completion of the statutorily-required
process under K.S.A. § 8-135(c), or in other words, when the Bank’s
lien was actually noted on the title, and not when it applied for title in
January 2006. Therefore, the Trustee could avoid the Bank’s lien under
11 U.S.C. § 544 and preserve it for the estate under 11 U.S.C. § 550
and § 551.
The Court also noted that K.S.A. § 84-9-516, which covers filing errors,
does not apply to perfection questions because K.S.A. § 84-9-311 expressly
states that filing is not necessary or effective to perfect the interest in
the title vehicle.
2. Frontier Farm Credit v. Norris, et al. (In re: Norris);
Case No. 05-43551;
Adv. Case No. 06-7005; Chapter 7 (Somers) (October 29, 2007)
ORDER GRANTING FIRST NATIONAL BANK OF GIRARD’S MOTION TO DISMISS
Facts:
In 2003, the debtors pledged all their presently-owned
and after-acquired cattle to Frontier as security for a $150,000.00 revolving
line of credit.
In March 2004, the debtor sold 198 head of cattle and paid his son $25,000.00
and $5,600.00, respectively, from the proceeds of that sale. Six months later,
the debtor sold another 25 head of cattle and again issued a $15,187.54 check
to his son from the proceeds of that sale. The son deposited those checks in
his account at First National Bank of Girard (“Bank”) and then
wrote separate checks to pay off loans that he owed to the Bank. Frontier brought
an action of fraud against the debtor, his son, and the Bank. The Bank moved
to dismiss Frontier’s claim against it, arguing that Frontier failed
to prove it participated in the debtor’s alleged fraud either knowingly
or wantonly.
Holding:
Because Frontier failed to allege that the Bank acted
in bad faith in receiving the proceeds from the debtor’s son, the Court dismissed Frontier’s
claim. The Court noted that, in Kansas, Frontier cannot assert a valid claim
to recover from the Bank simply by claiming the debtor defrauded it and transferred
the proceeds to the Bank. Frontier must, as the Court reasoned, allege that
the Bank had knowledge of the fraud or acted in bad faith in receiving the
funds. Otherwise, the law contemplates that a third party transferee, such
as First National, need not inquire as to the title of the payer every time
it received money. The free flow of money must be allowed without an accounting
or inquiry from receipt holder of the funds.
3. Frontier Farm Credit, PCA v. Norris, et al. (In re Norris)
Case No. 05-43551-7;
Adv. Case No. 06-7005; Chapter 7 (Somers) (October 23, 2007)
OPINION DENYING PLAINTIFF FARM CREDIT’S MOTION TO RECONSIDER
Fed. R. Civ. P. 59(e)
Facts:
Frontier loaned money to the debtors to refinance an
existing cattle loan and to buy more cattle. Instead, the debtors used that
money to finance a wheat
crop and to buy a tractor. The debtors later sold the wheat crop and the tractor
and remitted the proceeds of that sale to Ford Motor Credit (“Ford”)
a pre-existing debt. After the debtors filed bankruptcy, Frontier sought to
impose a constructive trust on the money received by Ford, claiming that they
represented proceeds of the collateral that was secured by Frontier’s
financing statements in “all farm equipment” and “all proceeds.” Ford
filed a motion to dismiss Frontier’s claim against it and the Court granted
that motion. Frontier filed a motion to reconsider. In its motion to reconsider,
Frontier asserted (among other arguments) that the financing statement put
Ford on notice that it had an interest in the cash proceeds delivered by the
debtor.
Holding:
The Court again denied Frontier’s claims that a constructive trust
should be placed over to the proceeds – citing that none of the arguments
Frontier asserted in its Motion to Reconsider meet the requirement of Fed.
R. Civ. P. 59(e). The Court noted that a Motion to Reconsider under Fed. R.
Civ. P. 59(e) must be based on newly discovered evidence, and not an attempt
to relitigate the issues already argued. That newly discovered evidence must
not have been available before the initial ruling. And given that Frontier’s
financing statement had been on file with the Secretary of State’s office
since November 2003, such evidence was not newly discovered.
Moreover, the Court rejected Frontier’s argument that the filing put
Ford on notice of Frontier’s interest in the cash proceeds because the
broad, general description in Frontier’s financing statement was simply
not enough to give Ford notice that the debtor was improperly transferring
the secured debtor’s collateral or proceeds to the third party.
The Court
also rejected several other notice arguments made by Frontier, namely, that the
payments made within 90 days before the debtors filed bankruptcy,
that the payments were much larger than the debtor’s regular, monthly
payment, and that the debtor’s payment to Ford was not in full satisfaction
of a preexisting debt.
4. In re Elmeda Delores Andrews, Case No. 07-20104-13 (Berger) (September 26, 2007)
MEMORANDUM OPINION AND ORDER DENYING CONFIRMATION OF DEBTOR’S
CHAPTER 13 PLAN
11 U.S.C. § 105(a)
11 U.S.C. § 362(a)(3)
11 U.S.C. § 506(b)
Fed. R. Bankr. P. 2016(a)
Facts:
Debtors Plan proposed to pay 0% interest on prepetition arrearages owed to
Wells Fargo. Wells Fargo objected.
Holding:
The Court found that the debtor did not have to pay
interest on prepetition arrearages which constitute interest. But the Court did
hold that to the extent
the prepetition arrearages constitute any other charge interest will accrue
at the discount rate of interest. The Court noted that the fees and expenses
assessed by the mortgagee are subject to review by the bankruptcy court for
reasonableness and are limited pursuant to 11 U.S.C. § 362(a)(3).
The Court also suggested the follow proposed model language for Chapter 13
plans:
The holders of claims secured by a mortgage on real property of the debtor
propose to be cured in the Home Mortgage section of this plan shall adhere
to and shall be governed by the following:
(A) Prepetition defaults. If the
debtor pays the cure amount (arrearages) specified in the Home Mortgage section,
while timely making all required postpetition
payments, the mortgage will be current according to its original terms, extinguishing
any right of the mortgagee to recover any amount alleged to have arisen prior
to the filing of the petition.
(B) Postpetition defaults. On mortgage note obligations,
within 60 days of issuing the final payment of the home mortgage cure amount
(arrearages), the
Trustee shall serve upon the mortgagee, its attorney, the debtor, and the debtor’s
attorney notice stating that (1) the cure amount (arrearages) has been paid,
satisfying all prepetition arrearage obligations of the debtor; (2) the mortgagee
is required to treat the mortgage as reinstated and fully current unless the
debtor has failed to make timely payments of postpetition obligations; (3)
if the debtor has failed to make timely payments of any postpetition obligations,
within 60 days after the Trustee’s notice, the mortgagee is required
to file a Statement of Outstanding Obligations, consisting of an itemization
of all outstanding payment obligations as of the date of its statement, with
service upon the Trustee, the debtor, and the debtor’s attorney; (4)
if the mortgagee fails to file and serve a Statement of Outstanding Obligations
within the required time, the mortgagee is required to treat the mortgage as
reinstated according to its terms and fully current as of the date of the Trustee’s
notice; and (5) if the mortgagee does serve a Statement of Outstanding Obligations
within the required time, the debtor may (i) within 30 days of service of the
Statement, challenge the accuracy thereof by motion filed with the court, to
be served upon the mortgagee, its attorney, and the Trustee, or (ii) propose
a modified plan to provide payment of additional amounts that the debtor acknowledges
or the court determines are due. To the extent that amounts set forth on a
timely filed Statement of Outstanding Obligations are not determined by the
court to be invalid or are not paid by the debtor through a modified plan,
the right of the mortgagee to collect these amounts will be unaffected.
5. Richard W. Thomas and Kathy Lee Thomas; Case No. 06-21108-7 (Berger) (October 2, 2007)
MEMORANDUM OPINION AND ORDER DENYING UNITED STATES TRUSTEE’S
MOTION TO DISMISS OR CONVERT
11 U.S.C. § 707(b)(2)
11 U.S.C. § 707(b)(3)
11 U.S.C. § 1325(b)
Facts:
On the date of their petition, the debtors, who had
above-median income, owned a Ford Truck and Mercury Minivan free and clear
of any liens. On their
statement of Current Monthly Income and Means Test Calculation, the debtors
deducted monthly allowances of $471.00 and $332.00 for two cars as their standard
monthly vehicles expense. The United States Trustee sought dismissal for presumed
abuse under §707(b)(2) and for the totality-of-circumstances abuse under §707(b)(3),
arguing that the debtors were not entitled to those expenses because the vehicles
were unencumbered.
Holding:
As for the U.S. Trustee’s presumed abuse argument,
the Court found that the debtors were entitled to claim vehicle-ownership expenses
even though
the debtors owed nothing on the vehicles. The Court reasoned that the presumption
of abuse is a statutory formula that did not require the debtor to prove actual
circumstances. For example, a debtor with a car payment less than the standard
ownership allowance is permitted the higher standard deduction. It follows,
the Court reasoned, that the debtor with no payments may likewise take the
higher deduction.
Next, the Court found pre-BAPCPA factors still applicable when
considering the U.S. Trustee’s § 707(b)(3) argument, including the pre-BAPCPA
consideration of whether the debtor had an ability to pay under a Chapter 13
plan. In deciding whether a debtor has the ability to pay, the Court noted
that for above-median debtors, § 1325(b), not Schedules I and J, determines
what amount, if any, the debtors could contribute to unsecured creditors. Therefore,
the Court reasoned, because § 1325(b) incorporates § 707(b)(2)(A)(ii)(I),
and § 707(b)(2)(A)(ii)(I) includes the national and local standards for
vehicles allowances, the debtors’ were entitled to the two-vehicle allowance
when considering potential abuse under § 707(b)(3).
6. Leslie A. Camacho and Dominic Camacho; Case No. 06-20729-7 (Berger) (October 4, 2007)
ORDER DENYING UNITED STATES TRUSTEE’S
MOTION TO DISMISS OR CONVERT
11 U.S.C. §707(b)(2)
Facts:
The debtors filed for relief under chapter 7 on May
30, 2006. The debtors had above-median income. The debtors’ Form B22A
adopted standard vehicle allowances as a result of their ownership interest
in a Toyota Tercel and a
1998 Cadillac Deville. But the Cadillac Deville was the only encumbered vehicle.
United States Trustee moved to dismiss the case pursuant to 707(b)(2) arguing
that the debtors were not allowed to deduct their monthly car ownership allowances
for the Toyota Tercel because it was unencumbered.
Holding:
The Court concluded that the debtors were entitled to claim vehicle ownership
expenses. The Court incorporated the same rationale it did in In re Thomas,
cited above.
7. In re Campbell Sod, Inc. and In re Arthur L. Campbell (consolidated);
Case
No. 06-11820 and Case No. 06-11717-12 (Nugent) (October 18, 2007)
MEMORANDUM OPINION
11 U.S.C. §364
Facts:
The debtors ran a sod farm near Rossville, Kansas.
The Bank held a mortgage on a land and possessed a perfected security interest
in all the personal property
of the company. The debtor’s chapter 12 plan sought an infusion of $200,000.00
in capital and for the post-petition creditor’s lien to take superpriority
over the Bank’s mortgage and perfected security interest under 11 U.S.C. §364(d).
The Bank objected to confirmation of the plan. They claimed that its interest
would not be adequately protected it were to be subverted.
Holding:
The Court found that, with the $200,000.00 infusion
of cash, the debtor’s
plan would be feasible and the bank would be adequately protected given the
gross projections of profit made at the evidentiary hearing.
As to feasibility, the Court found that with the infusion of $200,000.00
the debtor could generate sufficient cash flow to cover the difference between
the total production costs of the sod and the $200,000.00 advance. As to the
priming lien and adequate protection under § 364(d), the Court considered
three elements as to whether the Bank’s position was adequately protected
(1) cash payments to compensate a creditor for a decrease in his collateral
value; (2) an additional or replacement lien; or (3) some other provision to
assure the secured creditor and the indubitable equivalent of its interest.
The Court found that between the sod, equipment, and real estate, the Bank
was over secured by over $200,000.00 and that equity cushion; the elements
of adequate protection were met.
The Court also considered a holistic approach
to determine whether adequate protection was offered. This approach required
evaluation of collateral, the
existing lender, the likelihood of its depreciating or appreciating over time;
the prospect of the reorganization contemplated by the debtor was successful,
and the performance in accordance to the plan. Given the nature of the development
of the sod and the projections given at trial, the Court found that the Bank
was adequately protected, give the substantial likelihood the infusion of capitol
will increase the asset value, and that the borrowing will not pass an unacceptable
portion of risk onto the Bank. Crucial to the later finding was the Court’s
recognition that the postpetition lender would not claim an interest in the
real estate which was a bulk of the Bank’s security.
8. Travelers Casualty & Surety Company v. H. Kent Desselle, et
al (In re Fries);
Case No. 03-22894; Adv. Case No. 06-6209; Chapter 13 (Berger)
(October
9, 2007)
MEMORANDUM OPINION AND ORDER
Facts:
Debtors operated a construction company called Vina
Construction, Inc. Travelors served as the debtors’ bond company. Vina was the general contractor
on a project for the City of Kansas City, Missouri. Vina encountered problems
on the project, and as a result, Travelors paid Vina’s supplies and subcontractors
under the bond. Before filing bankruptcy, Travelors, Vina, and the debtors
entered into a settlement agreement. As part of that settlement agreement,
Vina assigned to Travelors the action it had against the City related to the
project. To pursue that claim, Travelors engaged attorney, Deselle, on a contingency-fee
basis. That engagement was entered into in September 2002. Desselle didn’t
file suit until October 2005. In the interim, Travelors entered into settlement
negotiation with the City. During those negotiations, the City asserted a counterclaim
in the amount of $1.5 million dollars. Those negotiations halted after Desselle
filed his October 2005 law suit. The debtors also filed a Chapter 13 bankruptcy
during this timeframe. In the confirmation, and in an attempt to breathe life
back into the settlement negotiations, the debtors assigned all their claims
against the City to Travelors. Negotiations were started up between the City
and Travelors only to put to a halt again by Desselle’s assertion of
an attorney’s lien. Travelors then sought a determination from the Bankruptcy
Court that Desselle did not have a lien on its claim.
Holding:
The Court found that Travelors was entitled to summary
judgment on all claims related to Deselle’s attorney lien. First, however, the Court found that
it did not have jurisdiction over Travelor’s request for summary judgment
on all breach of fiduciary claims, breach of contract claims, civil conspiracy
claims, and tortious interference of business practices claims between Travelors
and Deselle because those claims did not effect estate property, which was
the debtors cause of action against the City.
Next, the Court held that Deselle
forfeited his right to compensation by filing suit against the City in direct
violation of the instruction he received from
Travelors. The Court also found that the value of Deselle’s services
were zero because he failed to produce any evidence supporting any valuation.
Most importantly, the Court held that, because under Missouri Law an attorney’s
lien only attaches if a client recovers a monetary award, Deselle’s attorney’s
lien failed because no recovery was expected because of the City’s substantial
counterclaim.
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