In re Bremer

562 B.R. 903, 2017 Bankr. LEXIS 271
CourtUnited States Bankruptcy Court, W.D. Michigan
DecidedJanuary 26, 2017
DocketCase No. DG 16-06279
StatusPublished

This text of 562 B.R. 903 (In re Bremer) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Bremer, 562 B.R. 903, 2017 Bankr. LEXIS 271 (Mich. 2017).

Opinion

MEMORANDUM OF DECISION & ORDER

PRESENT: HONORABLE SCOTT W. DALES, Chief United States Bankruptcy Judge

After discovering that Ricki K. Bremer (the “Debtor”) had filed a chapter 13 bankruptcy petition while her current chapter 7 case remains pending,1 the court issued an Order to Show Cause dated December 22, 2016 (the “Show Cause Order,” ECF No. 8), directing the Debtor to explain why the court should not dismiss the Chapter 13 Case as prohibited per se or as a bad faith filing. The Debtor and the chapter 13 trustee Brett N. Rodgers (the “Chapter 13 Trustee”) both appeared through counsel at the January 18, 2017 show cause hearing in Grand Rapids, Michigan. The Chapter 13 Trustee supports dismissal and a per se ban on concurrent bankruptcy proceedings involving the same debtor. After listening to the arguments of counsel, the court took the matter under advisement and gave the parties an additional opportunity to brief the issues.2

[905]*905As noted in the Show Cause Order, some courts regard the pendency of simultaneous bankruptcy cases as per se prohibited, and others disagree, but carefully scrutinize the two filings for signs of bad faith. See, e.g., In re Lord, 295 B.R. 16 (Bankr. E.D.N.Y. 2003) (describing split of authority but barring the debtor from maintaining bankruptcy cases under two chapters simultaneously).

During the show cause hearing in this case, Debtor’s counsel stated that she filed the Chapter 13 Case largely to help her client keep a motor vehicle, explaining that the Muskegon Co-Op Credit Union was unwilling to enter into a reaffirmation agreement on the car loan in the Chapter 7 Case. When the court entered the chapter 7 discharge on December 15, 2016, the deadline for making an enforceable reaffirmation agreement passed (assuming the car loan was dischargeable in the Chapter 7 Case). See 11 U.S.C. § 524(c) (debtor may reaffirm dischargeable debts).3 So, the Debtor filed the chapter 13 petition the next day, and later filed a plan providing for the car lender’s claim.' The plan also provides for a tax claim, and claims of the Debtor’s home mortgage and student loan lenders.

Despite the earnest arguments of the Debtor’s counsel, the concerns that prompted the court to issue the Show Cause Order remain. Although the court does not perceive any bad faith, the concurrent pendency of two voluntary petitions for relief under the Bankruptcy Code nevertheless presents problems, both practical and theoretical, that the Debtor was unable to address to the court’s satisfaction during the hearing.

For example, counsel recently learned that the Social Security Administration garnished or otherwise took from the Debtor’s bank account an unspecified amount it regarded as an overpayment it previously made (before the filing of either petition) to support the Debtor’s mother, evidently after the Debtor’s mother had already passed away. It is not clear whether that garnishment violated the automatic stay in the Chapter 7 Case, the Chapter 13 Case, neither, or both. And, depending on the timing of the reported transfer (and title to the property obtained through the garnishment) the transaction might be unwound at the behest of either the Debtor or the chapter 7 trustee (through a motion for contempt of the automatic stay in the Chapter 7 Case or damages under § 362(k)); or by the chapter 7 trustee (in an adversary proceeding to avoid an unauthorized post-petition transfer under § 549); or by the Chapter 13 Trustee (through a proceeding to avoid and recover a preference in the Chapter 13 Case), or by the Debtor (in the Chapter 13 Case under § 522(h)). The opportunity for conflict and confusion is manifest, and in the court’s view, avoidable.

The court also notes from reviewing the docket in the Chapter 7 Case that AmeriFirst Financial Corporation has filed a motion for relief from the automatic stay. Presumably, the creditor could prevail on that motion in the Chapter 7 Case, yet find itself enjoined by the automatic stay in the Chapter 13 Case.4 That hardly seems fair or consistent with orderly administration.

[906]*906More generally, the simultaneous pendency of two eases creates the possibility of two fiduciaries with authority over the same property—the chapter 7 trustee, whose .authority over the property of the estate continues until the property is no longer in the estate, and the chapter 13 debtor, who has the authority to use property of the chapter 13 estate. Although the chapter 7 trustee has filed a “no asset report” signaling her intent to abandon all remaining estate property in the Chapter 7 Case, the abandonment of scheduled property arguably does not occur upon the filing of the “no asset report,” but upon the closing of the case. See 11 U.S.C. § 554(c). Furthermore, augmentation in the value of property occurring after the “no asset report,” perhaps through market forces or because the Debtor is paying down the liens encumbering the car or house, could conceivably prompt the chapter 7 trustee to withdraw the report and seek to administer the property which, by virtue of the filing of the chapter 13 petition, may also be entrusted to the Debtor’s control as debtor in possession.' See 11 • U.S.C. §§ 323 (trustee is representative of the estate), 1303 (chapter 13 debtor has many of the trustee’s powers under § 363), and 1306(b) (chapter 13 debtor remains in possession of property of the estate); see also United States v. Robinson (In re Robinson), 764 F.3d 554, 558-59 (6th Cir. 2014) (filing of bankruptcy petition “divests” the debtor of interest in estate property, and vests the property in the trustee).

In an in rem proceeding such as bankruptcy,5 overlapping bankruptcy estates could easily lead to conflicting decisions, competing claims for authority, unnecessary litigation, uncertainty, strife, delay, and waste. Simply put, the nature of bankruptcy court jurisdiction, and the substantive structure of the Bankruptcy Code, preclude the simultaneous pendency of two voluntary cases involving the same debtor.

Indeed, one of the frequently mentioned virtues of relief under the Bankruptcy Code is the creation of a single forum in which to resolve most issues involving a debtor and her creditors. As our District Court stated in a different context:

The American bankruptcy laws are intended to ensure that the assets of a bankrupt are efficiently and fairly distributed among its creditors in a single proceeding instead of erratically being dissipated in a number of different lawsuits.

Matter of Old Orchard Inv. Co., 31 B.R. 599, 603 (W.D. Mich. 1983) (citation omitted). This principle, though taking aim at multiple proceedings in non-bankruptcy courts, also guides today’s decision.

Under the circumstances, the court is not powerless to act. Athough it could consolidate the two cases under Fed. R. Bankr. P, 1015(a), doing so would not ameliorate the concerns expressed, leaving two trustees (and presumably two estates) in place.

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Related

Johnson v. Home State Bank
501 U.S. 78 (Supreme Court, 1991)
Tennessee Student Assistance Corporation v. Hood
541 U.S. 440 (Supreme Court, 2004)
Mason v. Young
237 F.3d 1168 (Tenth Circuit, 2001)
In Re Carter
285 B.R. 61 (N.D. Georgia, 2002)
In Re Lord
295 B.R. 16 (E.D. New York, 2003)
United States v. Robinson (In Re Robinson)
764 F.3d 554 (Sixth Circuit, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
562 B.R. 903, 2017 Bankr. LEXIS 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bremer-miwb-2017.