General Lending Corp. v. Cancio

505 B.R. 63, 2014 WL 320367, 2014 U.S. Dist. LEXIS 10880
CourtDistrict Court, S.D. Florida
DecidedJanuary 29, 2014
DocketNo. 13-21030-CIV
StatusPublished
Cited by1 cases

This text of 505 B.R. 63 (General Lending Corp. v. Cancio) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
General Lending Corp. v. Cancio, 505 B.R. 63, 2014 WL 320367, 2014 U.S. Dist. LEXIS 10880 (S.D. Fla. 2014).

Opinion

OPINION AND ORDER AFFIRMING DECISION OF THE BANKRUPTCY COURT

KENNETH A. MARRA, District Judge.

General Lending Corporation (“GLC”) appeals the Bankruptcy Court’s Final Order Overruling GLC’s Objections to Confirmation of Debtors’ Third Amended Chapter 13 Plan and Denying GLC’s Motion to Dismiss, and Order Confirming Chapter 13 Plan [DE 1; Adv. Pro. No. 10-20820, ECF No. 381 and 384]. The Court has carefully considered the briefs, the entire record on appeal, and is otherwise fully advised in the premises.

Background

The Cancios (“Debtors”) filed for Chapter 13 bankruptcy relief on April 23, 2010 to prevent the foreclosure of the Debtors’ homestead property. The property is subject to three mortgages, a first by Wells Fargo Home Mortgage, Inc., a second also by Wells Fargo Home Mortgage, Inc., and a third mortgage by the Appellant GLC. Debtors did not file their Statement of Financial Affairs or their initial Schedules A through J until June 11, 2010. The case was dismissed for Debtors’ failure to file a plan but was subsequently reinstated. GLC appealed the order of reinstatement and this Court affirmed the Bankruptcy Court’s decision to reinstate.

Since the initial filing of their Schedules, Debtors amended their Schedules six times and filed four Chapter 13 Plans. The case was heavily litigated and extensive discovery was conducted. GLC filed a [66]*66Motion to Dismiss “late in the game based on the debtors being beyond the eligibility requirements under § 109.” DE 11 at 11 of 43.1 At that point Debtors were two-thirds of the way through the Chapter 13 process and had maintained their Chapter 13 plan payments for two years.

On March 19, 2012, and April 25, 2012, the Bankruptcy Court conducted an evi-dentiary hearing on GLC’s objections to confirmation of the Debtors’ Chapter 13 Plan. On April 25, 2012, the Bankruptcy Court also conducted a non-evidentiary hearing on GLC’s Motion to Dismiss based on ineligibility.

The Motion to Dismiss on grounds of ineligibility was denied. The Bankruptcy Court found that the Motion to Dismiss was filed so late in the case that the doctrine of laches barred relief. On April 25, 2012, the Bankruptcy Court concluded on the record:

issues of eligibility can be raised and are not legally waived until confirmation. However, the Court also agrees with the debtor that the doctrine of laches applies in this instance. The debtors would be greatly prejudiced at this point by requiring them to convert to Chapter 11 after two years of litigation on their ability to proceed with their Chapter 13 plan, and having all of this framed in the context of Chapter 13 statutory requirements and construct, to now stop everything and cause significant additional expense and perhaps a different focus on issues if the case was converted to 11 would be greatly prejudicial ... [Y]ou normally look at the debt limits on the filing date, [but] under the facts of this case, I would find that it would be appropriate to look at the facts as they were played out by the time the motion to dismiss was raised.
To say it another way, it would be hypertechnical to allow a motion to dismiss at a point in time when you know Bayview has not filed and is not asserting an unsecured claim and say, no, we just look at a snapshot at the filing date, and now two years later kick the debtors out of Chapter 13.

DE 2-6 at 649-651 of 819; DE 11 at 4; Adv. Pro. No. 10-20820, ECF Nos. 315, 319, 322.

On July 10, 2012, the Bankruptcy Court overruled GLC’s objections to confirmation concluding that GLC had failed to show the type of egregious conduct that would prove bad faith and disqualify Debtors from having their Chapter 13 Plan confirmed. DE 11. The Bankruptcy Court made, in part, the following findings and conclusions on the record:

As to the Plan itself, although it only provides a very small distribution to unsecured creditors, there’s no allegation or evidence that the Plan fails to meet the liquidation test under 1325(a)(4), nor are there any allegations or proof that the debtors’ income would require larger payments to unsecured creditors, but for GLC’s objection, the Chapter 13 Trustee is ready to recommend confirmation.
GLC’s case is based on evidence at trial which GLC argues cumulatively establishes the Debtors’ lack of good faith.
I do not find evidence of bad faith, however, in connection with the foreclosure action. The evidence was not sufficient to prove that the Debtors perjured themselves or otherwise acted in bad faith in defending the foreclosure action, and I further find it was not bad faith to file this bankruptcy case to stop the foreclosure and try to save their home.
[67]*67In addressing the alleged wrongdoing in connection with the restitution obligation, the Court finds that this issue is of little or no relevance on the good faith of this case and this plan.
I agree with GLC that Mrs. Cancio received [at least $9,500] from Aabacus that really represented income to Mr. Cancio. I do not conclude that this procedure was used to avoid restitution obligations.
The next issue is whether the Debtors under reported their income to the IRS, and if so, was this evidence of bad faith. On this issue the Court finds that the Debtors may have under reported, but there’s no evidence that they intentionally filed false returns or that the under reporting was significant enough to demonstrate bad faith ... I don’t find any intentional under reporting given the debtors’ reliance on the W-2’s.
So, while I agree with GLC’s argument that there’s an inference that there should have been construction earnings if Mr. Cancio was testifying truthfully about these payments being commissions, we’re still left with insufficient evidence to establish the amount of income Mr. Cancio may have earned and not reported on his 2007 return, even assuming there were jobs that this individual named Diesel may have referred to him.
The Court agrees with GLC that income of $6,000 from Aabacus was not included in the 2010 return ... [and] finds that personal expenses paid from the Puche-co business account should have been reported as gross income on Mr. Can-cio’s 2010 return ... Again, however, the amount by which Mr. Cancio under reported passive income from Pucheco was not quantified, and to the extent Mr. Zorrilla attempted to do that by way of post-closing summaries and compilations, the Court is not accepting those ... into evidence. But once again, to keep this in context, I’m not sitting as a tax court trying an audit of the Debtors’ returns. I’m looking at the evidence and its relevance to an overall finding and whether the Debtors filed this case and filed their Chapter 13 Plan in good faith ... I do not find that the disclosures regarding Pucheco and the ultimate production of the Pucheco bank statements support a finding of bad faith.
The Court does not find that Mrs. Can-cio intentionally withheld testimony on [the issue of her knowledge about Mr. Cancio’s earnings and where he deposited his income] or that her answers were in bad faith.

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Cite This Page — Counsel Stack

Bluebook (online)
505 B.R. 63, 2014 WL 320367, 2014 U.S. Dist. LEXIS 10880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/general-lending-corp-v-cancio-flsd-2014.