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In re ABC-NACO, Inc.
July 1, 2003

Judge Jacqueline P. Cox

In re Evelyn Watkins
August 22, 2003

03 B 21660

Secured creditor filed a motion requesting relief from the automatic stay in order to pursue its state law rights and remedies with respect to the debtor’s car that was stolen and totaled pre-petition. It additionally requested an order pursuant to Bankruptcy Rule 9013 directing the insurance company to pay it the full settlement amount in order to fulfill the pre-petition state-court judgment denying declaratory relief in favor of the debtor. The debtor argued that the attorneys’ fees incurred due to her attempt to collect the insurance proceeds should be paid out of the proceeds because her attorney is entitled to a superior equitable lien against the proceeds as a result of their contingency-fee agreement. The court held that full faith and credit must be afforded to the state court judgment in favor of the secured creditor on the issue. The court lacked subject-matter jurisdiction to consider the argument under the Rooker-Feldman doctrine. The court also held that the debtor could not claim a wild-card exemption in the insurance proceeds; nor could the debtor attempt to avoid the lien under 11 U.S.C. § 522(f)(1). The motion to modify the stay was granted.

03 B 07231

A chapter 7 debtor moved to compel mortgagee to enter into a reaffirmation agreement that alleged, among other things, that his mortgage payments were current. Mortgagee filed a cross motion for modification of the automatic stay, which alleged a default on the mortgage, that the debtor had no equity in the real property and that the property was not necessary for an effective reorganization. The cross motions raised the legal issues of whether a chapter 7 debtor may retain his home against the objection of the mortgagee by simply remaining current on payments, or conversely, whether a mortgagee should be entitled to foreclose in pursuit of its in rem claim against real property only because the debtor-mortgagor obtained a chapter 7 discharge of personal liability. The court held that: (1) the debtor was required under 11 U.S.C. § 521 to elect between reaffirmation, redemption and surrender and then perform the intention within 45 days thereafter; (2) that the court could not force the Mortgagee to enter into a reaffirmation agreement; and (3) that relief from the automatic stay was appropriate and would not be much of an additional burden on the debtor.

02 B 41591

Tax sale purchaser obtained a tax deed for property owned by the debtor and transferred the tax deed to a land trust for the benefit of a third party. The debtor’s interest was not recorded. The third party used this interest to secure a loan with a finance company. The finance company moved under 11 U.S.C. § 362(d) to annul the automatic stay in the debtor’s chapter 13 case for “cause” in order to validate the tax deed that was issued while the stay was in effect. The court held that: (1) as the holder of both the legal and equitable title to the real estate, the debtor had a property interest that became part of her bankruptcy estate in spite of the fact that her legal interest had not been recorded until 2 years after the pendency of a prior chapter 13 case; (2) the filing of the application for an order issuing the tax deed by the tax sale purchaser and the issuance of the tax deed were willful violations of the automatic stay because the tax purchaser knew of the debtor’s unrecorded interest due to her efforts to negotiate with the tax purchaser; and (3) that equity did not clearly favor annulment of the automatic stay.

Judge Jack B. Schmetterer

Judge A. Benjamin Goldgar