2012 Judge Stern - Opinions
Judge Morris Stern -- Opinions signed in 2012
Debtor moves to dismiss her Chapter 7 bankruptcy case, arguing the mechanics of the filing process were flawed in that she assumes she did not comply with § 109(h) and § 521 of the Bankruptcy Code; that is, Ms. Kang claims to have never received thatcredit counseling which is reflected in a November 28, 2011 credit counseling certificate. Following a detailed factual analysis, the debtor's dismissal motion is denied based upon failure to show cause, her use of the bankruptcy process, her motivation to promote an insider preference, the negative effects on creditors overall, and concepts of judicial estoppel.
It is clear that In re Jason Realty, L.P., 59 F.3d 423, 427, 430 (3d Cir. 1995) denies status as “property of the estate” per 11 U.S.C. § 541(a) for post-default rents which are the subject of an absolute assignment. However, this court does not consider that Jason addressed issues of the assignee’s accountability for those rents to the extent of impact, if any, on a Chapter 13 plan confirmation. Rent accountability issues could affect plan feasibility (i) by satisfying certain Debtor’s anticipated and scheduled expenses (such as real estate taxes), and (ii) by reducing the mortgage amount required to be paid within the plan. Focusing on plan mortgage payment reduction (if any), the parties would apparently be at odds. The mortgagee-assignee contends inter alia, that any net proceeds may be applied to the full debt amount (discounting the cramdown), while Debtor would seek to have the credit applied to the lesser cramdown balance by the parties at this time. The court resolves the dispute in favor of Debtor, based upon 11 U.S.C. § 506(d) lien voiding.