In this South Carolina bankruptcy case, the Court held that for Debtor’s Chapter 13, the mortgage creditor was required to use the interest rate set in a previous foreclosure Order, not the penalty interest rate from the original loan documents.
In this case the Court does not approve a Chapter 13 plan that does not cure Debtor’s lease arrearage: In this case the Court denied Chapter 13 confirmation because Debtor’s plan failed to adequately treat Debtor’s residential past due lease. The Court found that Debtor had not sufficiently proposed to “cure postpetition arrears or promptly cure prepetition arrears” and that she had not convinced the court she could pay her rent stating that her “performance since filing [was] more credible than the written budget.”
The court denied creditor, Lexington Health Services District, Inc. d/b/a Lexington Medical Center, who asked to dismiss the damages adversary claim arguing that it is a political subdivision and that pursuant S.C. Code §12-60-80(C), made applicable to this action by Federal Rule of Civil Procedure 17, it lacks the capacity to be named as a party in a class action lawsuit, plaintiffs’ claims against it are barred by sovereign immunity, plaintiffs had not exhausted their
administrative remedies, as required by the Setoff Debt Collection Act.
Debtor has taken inherently inconsistent positions between her
petition, schedules, statements and her testimony at her deposition and before the Court.
Attorney’s fees distribution upheld when plan remained unconfirmed: https://www.scb.uscourts.gov/sites/default/files/opinions/Judge%20Waites/opn_84_18-05885_637297154136560503.pdf
SCLBR 3070-1(b)(2) & §1326(a)(2)
SECTION 37-5-109. Default.
An agreement of the parties to a consumer credit transaction with respect to default on the part of the consumer is enforceable only to the extent that:
(1) the consumer fails to make a payment as required by agreement; provided, with respect to a consumer rental-purchase agreement, a lessee defaults when he fails to renew an agreement and fails to return the rented property or make arrangements for its return as provided for by the agreement; or
(2) the prospect of payment, performance, or realization of collateral is significantly impaired; the burden of establishing the prospect of significant impairment is on the creditor.
HISTORY: 1976 Act No. 686 Section 39; 1985 Act No. 121, Section 12.
Copely v United States In this May 2020 upset case for Debtor’s attorney’s throughout the 4th Circuit, the Court allowed IRS set off against Debtor’s tax refund (overpayment) vacating the District Court’s Opinion, which upheld the bankruptcy Court’s Opinion stating as well settled 4th circuit law that the IRS could not seize (“set off”) a Debtor’s exempt tax refund (overpayment).
This IRS win may also complicate bankruptcy planning for Chapter 13 and Chapter 13 plans.
The HAVEN Act excludes VA and DoD disability payments from the monthly income calculation used for bankruptcy means testing.