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1997) provides the most thoroughly reasoned case on the issue of passage of attorney-client information in an individual chapter 7 case. The Court concluded that the examination would aid the trustee in determining whether the bankruptcy estate of the debtor had a cause of action against the attorney and the insurance company for malpractice or bad faith. 1982)(Where an individual owner of the stock of a bankruptcy corporation also filed for bankruptcy, the trustee could not waive the privilege for the individual because the disclosure could involve criminal conduct and thus, loss of personal freedom). In South Carolina, this Trustee is appointed from a panel of private trustees. It is sufficient that the appointment be in the best interest of creditors. The trustee is required to appear before the court at the Chapter 13 confirmation hearing and upon any modification. Section 361 provides three ways to provide adequate protection over a property interest. Regarding the issue of when turnover is required, the Court held that the duty to turn over is triggered upon a debtor''s notification to the creditor of the bankruptcy filing, written demand for turnover, and proof of insurance. Next, the Court granted relief from the automatic stay pursuant to §§362(d)(2). The Court granted the Motion for Relief from the Automatic Stay and the Motion for Relief from Co-Debtor Stay filed by the Bank. A Reaffirmation agreement should involve a renegotiation of the debt and the terms and/or total debt may be different from the original debt. 1998), the Court confronted the issue of whether or not the trustee in a Chapter 7 individual bankruptcy has the authority to waive the attorney-client privilege of the debtor and require the debtor's insurance company appointed attorney to be deposed regarding his representation of the debtor in the state court action. The Chapter 7 Trustee Section 701 provides for the immediate appointment of a Chapter 7 interim trustee. Even though the code specifically enumerates these reasons, a court need not find any of the enumerated subsections in 1104(a)(1) to appoint a trustee. Section 1302(b) delineates the trustee's responsibilities and incorporates many of the duties of a chapter 7 and/or 11 debtor in possession. Valuation of collateral securing a creditor's claim is flexible and is not limited to a single point in time for purposes of determining whether a creditor is entitled to accrue interest under 506(b). The concept of adequate protection preserves the secured creditors position at the time of bankruptcy. After examining prior cases in this District and in rejecting this argument, the Court held that §§542(a) placed an affirmative duty on creditors in possession of estate property to deliver it to the estate. In addition, the Court declined to grant the extraordinary relief of issuing an injunction to protect the third party because Debtor failed to demonstrate irreparable injury to the movant, lack of substantial harm to others if the injunction were granted, the promotion of public interest by issuing the injunction, and a reasonable likelihood of successful reorganization. 1995)(JW) Section 362, Equity and Successful Reorganization; A mortgagee was entitled to relief from the automatic stay to complete its foreclosure proceedings against the Chapter 11 debtor-mortgagor over a single asset debtor in which there was clearly no equity. So even though the debtorreceives a discharge, the debtor is still bound to the pay the total debt. This paper will first discuss the practical aspects of the trial of issues relating to the discharge and then will discuss the substantive criteria used to determine whether the debt will be discharged. can act for himself; there is no 'management' that controls a solvent individual's attorney-client privilege. the trustee was requesting the turnover of recorded information relating to the debtor's property and financial affairs in order to pursue causes of actions for breach of promissory note, breach of consulting agreement, breach of personal guarantee, fraud in the inducement and general fraud. a wrongful death state judgment caused the debtor to file for bankruptcy. This creditor must be a fixed unsecured creditor entitled to a distribution of property of the estate. This election is held at the 341 first meeting of creditors. Creditors should be aware of the trustee's responsibilities under the appropriate bankruptcychapter. Section 362(d)(1) states that a party in interest (a creditor) can move to lift the stay for cause, including a lack of adequate protection in the property. The Court ruled that, in order for property to be necessary for reorganization, a debtor must show a reasonable possibility of a successful reorganization and this possibility must be based on more than speculation. 7, 2001)(JW) Section 362(d), Relief from Automatic Stay. The Note was signed by both Debtor and a third party, but the property that secured the Note was solely owned by the third party. Reaffirmations are not supposed to pose an undue hardship on the debtor. Discharge and Objection to Discharge Generally, one of the primary purposes of the United States Bankruptcy Code (Title 11 of the United States Code of Laws) is to provide individual debtors with a "fresh start." The fresh start is provided by (1) allowing the debtor to keep certain minimal assets and (2) discharging the debtor from his obligations to pay his debts. However, discharge is a privilege granted to the honest debtor and not a right accorded to all bankrupts and as the Supreme Court once said discharge is only for the "honest but unfortunate debtor." , 133 B. That court held: The right to assert an attorney-client privilege is acquired by the trustee in bankruptcy in a situation where. trustee has become entitled to and the estate is owner of assets in the nature of a debtor's pre-petition causes of action against third parties. The Court concluding that the trustee could waive the privilege and held: when the trustee seeks to determine whether the bankruptcy estate holds a cause of action against an insurance company and the attorney it appointed for potential bad faith in settlement and malpractice during a state court case, which judgment precipitated the debtors' bankruptcy, the trustee holds the right to waive the attorney-client privilege. If a creditor is uncomfortable with the appointed trustee, the creditor can then call for the election of a new trustee under Section 702. The trustee must also monitor payments under the plan. Adequate protection may be achieved by using cash payments, replacement liens, or any other method that provide an equivalent of the entity's interest in property. Relief from the Automatic Stay for Lack of Adequate Protection. Debtor argued that the real property collateral will appreciate in the future and that its later sale will be the only way for him to reorganize. The Bank was the holder of a second mortgage lien on a parcel of real property. Reaffirmations should contain an attorney affidavit whereby the attorney states that he examined and investigated the reaffirmation to his client. Section 323 provides that the Trustee is the representative of the estate and thathe has the capacity to both sue and be sued. The Trustee's Ability to Waive the Debtor's Attorney-Client Privilege The Trustee can waive a corporate debtor's attorney client privilege for prepetition communications. The Supreme Court left the issue of an individual debtor's assertion of a privilege to the courts to decide on a case-by-case basis. Further, the Court may allow a Chapter 7 Trustee to transfer an avoiding power to a creditor if the creditor is pursuing interests common to the benefit of all creditors. An examiner investigates the business without replacing the debtor in possession. Section 506(b) states that if the collateral's value is greater than the amount of the claim, thenthe amount of the secured claim is the amount of the setoff or that amount of the collateral along with any interest or expenses of the creditor. If amount in collateral is greater than amount on lien, then creditor is in good shape and is oversecured. First, the stay can be lifted for cause, including a lack of adequate protection and second, if the debtor does not have equity in the property and the property is not needed for an effective reorganization.362(d)(3) then provides specific rules when the bankruptcy concerns a single asset real estate case.362(e) provides that thirty days after the motion for relief, the stay shall be lifted unless the court after both notice and a hearing orders thestay to continue in effect pending the conclusion of or as a result of a final determination of 362(d). The Court disagreed, ruling that raw land generating no income falls within the definition of single asset real estate. When Creditor sought relief from the stay, Debtor objected because Creditor failed to file an objection to its treatment in the plan. Furthermore, the Court found that even though the time between the purchase of the truck and the filing of the bankruptcy case was short, there were no indications that the bankruptcy was filed in bad faith thus precluding relief from the stay pursuant to §§362(d)(1). The amount needed for a redemption may be reduced if a debtor can use some of his state or Section 506 exemptions. Furthermore, a dismissal frees up all property encumbered by the bankruptcy. Appointment of a Trustee or Examiner Section 321 dictates who may serve as a trustee while 322 governs the Trustee's qualifications and bonds. The decision by the United States Supreme Court in , the Supreme Court held that the attorney-client privilege was available to a corporation, that the privilege passed from the corporation management to a Chapter 7 Trustee, and that the privilege could be waived by the Chapter 7 trustee for pre-petition attorney-client communication. Nevertheless, there is a line of cases finding that a trustee does not have the power to waive the attorney-client privilege of the individual debtor and these cases focus on personal harm to or control over the debtor. The Trustee in a Chapter 7 case has the authority to bring law suits under state law or federal law and may, with court order, continue the conduct of the debtor's business. The trustee replaces the debtor in possession to operate the business and manage the reorganization efforts. Factors in determining if there is cause to appoint a Trustee include: (1) the existence andmateriality of any misconduct on the part of the debtor-in-possession; (2) the evenhandedness in dealings with insiders or affiliates; (3) the existence of preferences or fraudulent transfers; (4) the unwillingness or inability of management to pursue the estate's causes of action; (5) conflicts of interest on the part of management of the debtor-in-possession; and (6) self-dealing by management or waste of corporate assets. Section 506(a) provides that a creditor with a right of setoff or a lien has a secured claim ONLY to the amount subject to setoff or the value of the collateral. 3/31/99) (a Chapter 7 debtor does not have standing to use 506(d) to void a lien on real property which is abandoned or likely to be abandoned and therefore of no benefit to the estate). Valuation Hearing or Confirmation Hearing Creditors can call for a section 506(a) valuation hearing or the hearing may accompany the confirmation hearing as long as Bankruptcy Rule 3012 is properly followed. 2d 424 (1993) (Chapter 13 debtor required to pay postpetition, preconfirmation interest to oversecured creditor holding mortgage on principal residence regardless of whether mortgage provides for such interest). Value is the Replacement Value The value used by the Courts is the replacement value. A substantial equity cushion can obviate the need for any other adequate protection. It is clearly susceptible to differing applications over a wide range of fact situations and will depend on the nature of the collateral and the proposed use of the collateral. To get relief from the stay the creditor must satisfy both parts of the 362(d) test. Debtor argued the real property is not single asset real estate because it is vacant land that does not presently generate income. The estranged husband failed to make payments for several months. Debtor filed a Chapter 13 bankruptcy proceeding approximately two months after purchasing a truck. The Court found that the truck was necessary for an effective reorganization, thus precluding relief from the stay pursuant to §§362(d)(2) because Debtors worked separate shifts and needed the vehicle for transportation. Section 722 allows a debtor to "redeem tangible personal property intended primarily for personal, household, or family use."Redemption permits the debtor to "pay off" the loan or the collateral.
Under Section 707(a) a Court may dismiss a Chapter 7, only after notice and a hearing and after a finding of cause (such as unreasonable delay and nonpayment of any fees). Primarily consumer debt has been defined as more than 50% of the total debt. Determining if substantial abuse exists under the circumstances include evaluating factors such as: (1)sudden illness, calamity, disability, or unemployment; (2) cash advances for consumer purchases in excess of the ability to pay; (3) excessive family budget; (4) accurate reflection of the debtor's true financial status in the debtor's schedules and statement of income and expenses; (5) the debtor's good faith; (6) if the debtor enjoys a stable source of future income; (7) if the debtor is elligible for a chapter 13; (8) if state remedies exist to ease the financial troubles; (9) the degree of relief available through private negotiation; and (10) if the debtor's expenses are able to be reduced without depriving him of necessities. The court did not impute this filing to this debtor because of a divorce and general animosity towards each other. If the original bankruptcy is dismissed, the creditor in a subsequent case, can recalculate hisclaim and interest on that original claim. The Court can terminate the trustee or examiner pursuant to Section 1105. 1995), the Chapter 13 debtor's case was not dismissed for lack of good faith, just because the husband had filed a previous Chapter 13. 11/13/96), the court dismissed Chapter 13 with prejudice for 180 days and sanctioned debtor for repetitive filing and for lack of feasibility, failure to pay and failure to file documents and provide information. An examiner MUST be appointed if the unsecured debts exceed 5 million dollars. If the code requirements of 524(c) and (d), including the requirement that it be entered into prior to discharge are not met, even if it is signed by the parties, a reaffirmation agreement is unenforceable. Section 1307(c) provides ten (10) examples of cause for dismissal or conversion. A dismissal under 349(a) is normally without prejudice and the debtor can refile and obtain discharge from those debts that were previously filed in first case.
Under Section 1307, after notice and hearing a party in interest or the United States Trustee may dismiss a chapter 13 case for cause if the dismissal is in the best interest of the creditors and the estate. Section 1112 also allows a party in interest or the United States Trustee to dismiss the case after notice, and a hearing wherecause is established. As it relates to dismissals with prejudice, in the case of , 96-72959-W (Bkrtcy. Section 1106 provides the specific duties of the trustee or examiner, which incorporates many of the applicable provisions of the Chapter 7 trustee, including investigating the debtor in possession and the business and filing reports, etc. Hereinafter, references to a Section shall be a reference to a section within the Bankruptcy Code unless otherwise specified. Conversion A.1.1 From Chapter 7 to Another Chapter Section 706(a)provides that the debtor may convert a Chapter 7 case to a Chapter 11, 12, or 13 as long as the case has not been previously converted from another chapter. This activity cost the debtor his Chapter 7 discharge. In so denying, the Court recognized that conversion is a drastic remedy and noted that the case was only 21 days old at the time of the hearing on the Motion to Convert. The Court concluded that there was no valuable ongoing business activity to protect by filing a Chapter 11 and that a confirmation of the plan could not be met pursuant to §1129 because the only unimpaired class had indicated their objection to the plan.