BAPCPA Decisions
of the Southern District of Georgia

DESCRIPTION	CASE NAME	JUDGE	DATE
Temporary waiver of credit counseling requirement under § 109(h)(3) – Mistake by paralegal resulting in untimely filing of credit counseling certificate was not exigent circumstance meriting 30-day waiver of credit counseling requirement where the debtor did not request or receive credit counseling pre-petition and where the debtor’s motion did not describe any circumstances that prevented the debtor from obtaining credit counseling pre-petition. Because an individual may not be a debtor under the Bankruptcy Code without complying with § 109(h), the debtor’s case was dismissed.	Jones	JSD	filed 4-28-2008
Payment of child support arrearage and attorney's fees in chapter 13's. (1) §1326(b)(1) requires §507(a)(2) claims to be paid before or at the time of each payment to creditors; (2) equal monthly payments of §1325(a)(5)(B)(iii) start at confirmation.	Williams	SDB	filed 3-28-2008
Applicable commitment period as used in §1325(b)(1)(B) & ((b)(4) is temporal for above-median income debtors, even those with negative B22C disposable income.	Turner	SDB	filed 3-17-2008
§ 1326(a) pre-confirmation adequate protection payments. Upon conversion from chapter 13 to chapter 7 creditor was entitled to pre-confirmation adequate protection payments.	Hampton	SDB	filed 2-22-2008
§ 1325(a)(*) “hanging paragraph” does not bar a creditor holding a 910 claim from seeking an unsecured deficiency claim following the liquidation of the motor vehicle: Creditor filed a motion objecting to the confirmation of the Debtor’s chapter 13 plan on the ground that the plan improperly provided for the surrender of a motor vehicle in full satisfaction of the creditor’s 910 claim. Nothing in the hanging paragraph prevents the creditor from pursuing an unsecured deficiency claim after the foreclosure sale of the vehicle following surrender. After the sale of the vehicle, the creditor may seek to have its previously allowed secured claim reconsidered as a general unsecured claim under § 502(j).	Hickox	JSD	filed 2-22-2008
Extension of exclusivity period under 11 U.S.C. § 1121(d) - The unresolved contingency of whether the Debtor In Possession would be able to assume the lease for its place of business constituted sufficient cause for extension of the time during which only the Debtor In Possession could file a plan of reorganization under chapter 11.	Sportman's Link	JSD	filed 12-3-2007
Extension of stay under 11 U.S.C. § 362(c)(3) – Debtor whose prior chapter 12 case was dismissed within one year of filing his present chapter 11 case must comply with the requirements of § 362(c)(3)(B) in order to obtain an extension of the automatic stay. Because Debtor’s previous case was filed under chapter 12, presumption of bad faith filing under § 362(c)(3)(C) did not arise, and Debtor must prove by only a preponderance of the evidence that his current chapter 11 case was filed in good faith. Applying the test in In re Phoenix Piccadilly, 849 F.2d 1393 (11th Cir. 1984), Judge Dalis concluded that Debtor’s chapter 11 petition was filed in good faith as to the creditors affected by the stay, which had already been extended by an order entered before the issuance of the opinion.	McKinnon	JSD	filed 9-24-2007
Imposition of Stay. Repeat-Filers. 11 U.S.C. § 362(c)(3)and (4). - Motion to Impose Stay denied in Debtor’s third case. To overcome the presumption of bad faith and obtain a stay, Debtor had to establish good faith in the present case by proving three separate elements. (1) Substantial change; (2) feasibility; and (3) confirmability. The first two are purely objective tests and must be separately proven, not just included within a “totality of circumstances” analysis. The third incorporates pre-BAPCPA precedent under § 1325, has both objective and subjective elements, and is analyzed in light of the “totality of circumstances.” Debtor must first establish the objective elements before the Court is required to examine Debtor’s subjective state of mind. Because Debtor did not prove there had been a “substantial change” by clear and convincing evidence the subjective test never became relevant	Thornes	LWD	filed 9-26-2007
§ 362(b)(2)(C)/DSO - Child Support Services was not bound under § 1327 by the provisions of the debtor’s plan and thus could maintain an income deduction order for a DSO post-confirmation when the Debtor’s proof of claim classified the DSO as an unsecured nonpriority claim and where the plan did not provide for any payment.	Vasquez	JSD	filed 8-28-2007
Means Test § 707(b)(2)(A) & (B): “Special Circumstances” exception to presumption of abuse is to be strictly construed. It does not cover situations which might be generally viewed as unfair or unfortunate, but only those which cause higher household expenses or adjustments of income “for which there is no reasonable alternative.”	Lightsey	LWD	filed 7/26/2007
Clerk of Court immunity/time limit for filing payment advices - The Clerk of Court was protected by derived judicial immunity, and regardless, did not engage in the unauthorized practice of law by entering an order of dismissal for failure to timely file payment advices as required by 11 US.C. § 521(a)(1)(B)(iv). In addition, Interim Rule 1007(c) was valid, because a 15-day time limit for filing payment advices does not modify any substantive right under § 521(i).	Carroll	JSD	filed 7/5/2007
Ch. 13 trustee immunity/ attys fees – Motion dismissed because trustee was protected from suit by derived judicial immunity. On issues raised by the motion, HELD that (1) Periodic payments in equal monthly amounts to a secured creditor as required under § 1325(a)(5)(B)(iii)(I) must begin in the first disbursement following confirmation. (2) Pre-confirmation adequate protection payments under § 1326(a)(1)(C) apply to the principal of the allowed secured claim. (3) Adequate protection during the period of the plan under § 1325(a)(5)(B)(iii)(II) is provided by payment in equal monthly amounts to pay in full the allowed secured claim over the life of the plan at an interest rate that provides the creditor the value of the claim as of the date of the filing of the petition, provided that the principal reduction achieved by the equal monthly payment is sufficient to offset any depreciation in the collateral. (4) The interest required to give a secured creditor the present value of its allowed claim begins to accrue on the date of confirmation. (5) In addition to principal, periodic payments in equal monthly amounts to secured creditors may include only interest that has accrued before the date of the periodic payment and that is due on the date of the periodic payment.	Denton	JSD	filed 6/12/2007
1328(f) Order - Holding the look-back period runs from the date of the filing of the previous chapter 13 petition to the date of filing of the current chapter 13 petition.	Wynn	SDB	filed 3/8/2007
910/"Acquired for personal use of debtor." Although Debtor currently drives the vehicle he established the vehicle was purchased for his non-debtor, now estranged, wife.	Grant	SDB	filed 3/2/2007
§ 1325(a)(*) "hanging paragraph" - Claim for vehicle debt was not covered by the "hanging paragraph" of Section 1325(a)(*) and thus could be modified under Section 506 when Debtor established that the truck was purchased for the use of his non-debtor wife; it replaced two cars that were traded in, one of which was primarily used by his non-debtor wife; and Debtor primarily used another vehicle.	Chaney	JSD	filed 2/7/2007
§ 362(b)(2)(C)/DSO - Section 362(b)(2)(C) provides for post-petition collection of child support arrearages through income deduction orders. Accordingly, such income deduction orders do not violate the automatic stay.	Denton	JSD	filed 1/30/2007
§362(c)(3)(A) / "Action Taken" Order - This matter initially came before the Court upon Debtor's "Motion to Continue Stay Pursuant to 11 USC §362 (c) (3) (B) as to ALL Creditors."	James	SDB	filed 1/17/2007
Order Denying Motion To Extend The Stay - 362(c)(3) and 362(c)(4) stay extensions	Hall	SDB	filed 12/22/2006
Denial of motion to amend Ch. 7 schedules - By motion, Larry J. Batten and Brenda A. Batten ("Debtors") seek to amend the schedules in their Chapter 7 case to reflect a tort claim that arose the same month Debtors received a discharge. Because the post confirmation, post conversion tort claim is not property of the estate and because it is not a property interest covered by Bankruptcy Rule 1007 (h), debtor's motion to amend their bankruptcy schedules is DENIED as unnecessary and improper. This Court has jurisdiction to decide this matter under 28 U.S.C. § 157 (b) (2) (A).	Batten	JSD	filed 9/29/06
§ 1325(b) means test - Means test issues: Section 1325(b) as amended by BAPCPA narrows the scope of the good faith inquiry under Section 1325(a)(3). Incorporation into BAPCPA of IRS Allowances for Other Necessary Expenses ("ONE deductions") puts the burden on the debtor to establish that a ONE deduction is actual, necessary, and reasonable. Income tax refunds are not income.	Johnson	JSD	filed 7/21/06
910 Day Order - These matters come before the Court on objections to confirmation filed by Credit Union of Texas. These are core proceedings over which the Court has jurisdiction pursuant to 28 U.S.C. 157 § (b) (2) (L).	Johnson	SDB	filed 9/6/2006
Order - In the matter of Robinson, Smith, Rahn, White and Coursey, Memorandum Opinion on Debtors' Applications for Waiver of the Chapter 7 Filing Fee - Discusses factors for obtaining filing fee waiver under 28 U.S.C. § 1930(f)(1).	Robinson and others	LWD	filed 7/20/2006
Reinstatement of § 362 automatic stay - Automatic stay was re-instated under Section 105 for first-time repeat filers when notice and hearing under 362(c)(3)(A) could not be completed before the automatic stay terminated by operation of law 30 days after the date the petition was filed.	Whitaker	JSD	filed 4/20/2006
§ 1328(f)(1) - In this case debtor had filed and received a discharge in a previous case and was not eligible to receive a discharge upon the successful completion of the current Chapter 13 plan pursuant to § 1328(f)(1). The Trustee argued that because the debtors were not eligible to receive a discharge, they were ineligible for Chapter 13 relief. Alternatively, the Trustee argued that the cases should have been dismissed under § 1307(c). Judge Dalis rejected the Trustee’s arguments. He concluded that § 1328(f) is not an eligibility provision. Further, under § 1325(a)(3), good faith can be deduced by an examination of the various factors listed by the Eleventh Circuit Court of Appeals in Kitchens v. Georgia Railroad Bank & Trust Co. The availability of a discharge is a factor for consideration, but its presence alone is not sufficient to demonstrate a lack of good faith by the debtors.	Lewis / Tobias	JSD	filed 3/27/2006
"910" Claims - Debtors purchased a vehicle for personal use within 910 days of filing a Chapter 13 bankruptcy case. Debtors argued that the phrase “section 506 shall not apply” means that “910" claims are not “allowed secured claims” within the purview of § 1325. Judge Dalis rejected the debtors’ argument. He concluded that the unnumbered paragraph of § 1325(a) means only that the bifurcation discussed in § 506(a) does not apply to these creditors’ claims. The unnumbered paragraph does not alter the secured status of the claim.	Brown / Leggett / Poarch	JSD	filed 3/27/2006
Order on Debtor's Motion for Preliminary Injunction and Restraining Order - Discusses burden of proof required to make a clear and convincing showing to obtain the imposition of a stay under section 362(c)(3) and (4).	Robinson	LWD	filed 12/29/2005
Order on Motion for Extension of Automatic Stay - retroactivity issue in refiled cases.	Butler	LWD	filed 11/15/2005
Order of dismissal/credit counseling - By motion filed October 28, 2005 Barbara T. Clay the purported debtor in this Chapter 13 case seeks an extension to obtain credit counseling and budget analysis pursuant to 11 U.S.C. §109 (h) (3). The motion is denied.	Clay	JSD	filed 11/9/2005
Order on Amended Emergency Motion for Extension of Automatic Stay - Discusses minimum Notice and Hearing requirements for Motions to Extend Automatic Stay and ex parte actions to Impose Stay.	Butler	LWD	filed 10/31/2005
Debt Relief Agency Order - The issue before the Court is whether amendments to the Bankruptcy code, which become effective today, regulating Debt Relief Agencies apply to attorneys licensed to practice law who are members of the Bar of this Court.	n/a	LWD	filed 10/17/2005

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