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.
$2.725 million or less of business debt may reorganize under a new subchapter of Chapter 11 that eliminates some of the most cumbersome aspects of Chapter 11.
Eliminates the absolute priority rule. Allowing individuals to retain non-exempt assets, and business owners to retain equity, even if all creditors are not paid in full.
11 U.S.C. §523(a)(15)
In relevant part, §523(a)(15) provides:
A discharge under Section 727… of this title does not discharge an individual from any debt… to a spouse, former spouse or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a court of record.
A debt that is nondischargeable under this provision must (1) be to a spouse, former spouse or child of the debtor, (2) not be the type of debt described in §523(a)(5), and (3) be incurred in the course of a divorce or separation, or in relation to a separation agreement, divorce decree or court order. Section 523(a)(5) excepts from discharge debts “for a domestic support obligation.” A domestic support obligation is defined in 11 U.S.C. §101(14A) as a debt
“owed to or recoverable by a spouse, former spouse or child of the debtor… or a governmental unit in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor… by reason of applicable provisions of a separation agreement, divorce decree, or property settlement agreement; an order of a court of record.”
Debts that are not support or maintenance but are, in fact, a division of property or debts between the two parties are not the type of debts described in §523 (a)(5). Johns v. Washburn (In re Washburn) (Bankr. N.D. Ga. 2010)
New case MAY affect retirement deductions in the means test in South Carolina. “the remaining issue is whether sections 541(b)(7) and 1322(f) impact the outcome of an ability to pay analysis under section 707(b)(3)(B).
That said, an ability to pay analysis under section 707(b)(3)(B) is generally considered within the context of a hypothetical chapter 13 case. Therefore, a strict application of Anes would yield the anomalous result that the Debtors’ retirement funds are counted as disposable income in disqualifying them from chapter 7, but excluded from disposable income in chapter 13.
The Trustee asserts that this outcome is simply a function of the difference between chapters 7 and 13, a position that the Court finds frustratingly myopic. Although he cites a string of post-BAPCPA cases that considered retirement funds as part of an ability to pay analysis under a section 707(b)(3)(B), the Court finds that upon a closer review these cases are less persuasive than the Trustee would suggest. ”