In re DeGroot

484 B.R. 311, 2012 Bankr. LEXIS 5908, 2012 WL 6719113
CourtBankruptcy Appellate Panel of the Sixth Circuit
DecidedDecember 27, 2012
DocketBAP No. 11-8083
StatusPublished
Cited by19 cases

This text of 484 B.R. 311 (In re DeGroot) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re DeGroot, 484 B.R. 311, 2012 Bankr. LEXIS 5908, 2012 WL 6719113 (bap6 2012).

Opinion

OPINION

GEORGE W. EMERSON, Jr., Bankruptcy Judge.

At issue in this appeal is a November 23, 2011 decision in which the bankruptcy court determined that an unscheduled asset which the chapter 7 trustee had partially administered should be deemed abandoned to the debtor’s ex-wife pursuant to 11 U.S.C. § 554(c) and (d). In so doing, the bankruptcy court relied on the “[ujnless the court orders otherwise” language found within § 554(c) and (d) and on [313]*313the unique procedural and factual background of this particular case.

For the reasons that follow, the Panel affirms the bankruptcy court’s determination that the unscheduled asset should be deemed abandoned to the debtor’s ex-wife pursuant to 11 U.S.C. § 554(c) and (d).1

I. ISSUES ON APPEAL

The issue presented by this appeal is whether the bankruptcy court erred in determining that an unscheduled asset which the chapter 7 trustee had partially administered should be deemed abandoned to the debtor’s ex-wife pursuant to 11 U.S.C. § 554(c) and (d).

II. JURISDICTION AND STANDARD OF REVIEW

The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Western District of Michigan has authorized appeals to the Panel, and no party has timely elected to have this appeal heard by the district court. 28 U.S.C. § 158(b)(6), (c)(1). A final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). For purposes of appeal, a final order “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted). An order to abandon property of the estate is a final order for purposes of appeal. Stark v. Moran (In re Moran), 385 B.R. 799 (6th Cir. BAP 2008) (table); Malden Mills Indus., Inc. v. Maroun (In re Malden Mills Indus., Inc.), 303 B.R. 688, 696 (1st Cir. BAP 2004).

The determination as to the abandonment in this case presents a mixed question of law and fact. Courts faced with reviewing mixed questions of law and fact must break down the issue “into its constituent parts and apply the appropriate standard of review for each part.” Moran v. LTV Steel Co., Inc. (In re LTV Steel Co., Inc.), 560 F.3d 449, 452 (6th Cir.2009). The initial issue of whether the bankruptcy court properly determined that it has the authority to deem property abandoned under 11 U.S.C. § 554(c) or (d) is a question of statutory interpretation which is reviewed de novo. Kottmeier v. United States (In re Kottmeier), 240 B.R. 440, 442 (M.D.Fla.1999). “Under a de novo standard of review, the reviewing court decides an issue independently of, and without deference to, the trial court’s determination.” Menninger v. Accredited Home Lenders (In re Morgeson), 371 B.R. 798, 800 (6th Cir. BAP 2007) (citation omitted).

The remaining issue of whether the bankruptcy court properly exercised its discretion under the phrase “[ujnless the court orders otherwise” in § 554(c) and (d) is a question of fact which is reviewed for an abuse of discretion. LPP Mortg., Ltd. v. Brinley, 547 F.3d 643, 648 n. 3 (6th Cir.2008); DeVore v. Marshack (In re DeVore), 223 B.R. 193, 198 (9th Cir. BAP 1998). “An abuse of discretion occurs only when the [trial] court relies upon clearly erroneous findings of fact or when it improperly applies the law or uses an erroneous legal standard.” Kaye v. Agripool, [314]*314SRL (In re Murray, Inc.), 392 B.R. 288, 296 (6th Cir. BAP 2008) (citations omitted); see also Mayor of Balt., Md. v. W. Va. (In re Eagle-Picher Indus., Inc.), 285 F.3d 522, 529 (6th Cir.2002) (“An abuse of discretion is defined as a ‘definite and firm conviction that the [court below] committed a clear error of judgment.’ ”) (citation omitted). “The question is not how the reviewing court would have ruled, but rather whether a reasonable person could agree with the bankruptcy court’s decision; if reasonable persons could differ as to the issue, then there is no abuse of discretion.” Barlow v. M.J. Waterman & Assocs. Inc. (In re M.J. Waterman & Assocs., Inc.), 227 F.3d 604, 608 (6th Cir.2000).

III. FACTS

On December 18, 2002, Joel DeGroot and Joy DeGroot obtained a judgment of divorce from the Ottawa County Circuit Court of Michigan. Pursuant to the terms of the divorce, Joel DeGroot was ordered to pay child support to Joy DeGroot for the parties’ two minor children. The state court awarded the parties’ marital residence to Joy DeGroot and ordered her to pay Joel DeGroot $48,000.00 for his share of equity in the property (“the Receivable”). The $48,000.00 was to be paid in 3 installments as follows: $10,000.00 within 3 months of entry of the divorce judgment; $10,000.00 within 7 years after entry of the divorce judgment; and $28,000.00 when the parties’ youngest child reached the age of 18, the home was sold, or Joy DeGroot died or remarried. The final payment of $28,000.00 was to bear interest at the rate of 2% per annum from the date of entry of the divorce. Pursuant to the divorce judgment, the entire $48,000.00 constituted a lien against the marital residence. Joy DeGroot made the first payment of $10,000.00 on March 18, 2003.

A little over two years later, Joel De-Groot (“Debtor”) filed a no-asset chapter 7 petition for bankruptcy relief. Debtor listed Joy DeGroot on Schedule F with a claim of $10,336.33 for “unpaid support and medical bills.” He did not, however, list the Receivable or the lien on the marital residence as assets on his bankruptcy schedules.

While Debtor’s case was pending, Joy DeGroot continued to have difficulty collecting child support from Debtor. At some point in 2006, the family court issued a show cause order to the Debtor regarding his poor payment history for child support. In an attempt to resolve the issue and to avoid possible incarceration, Debtor entered into negotiations with Joy DeGroot to settle the child support delinquency.

Although Debtor’s bankruptcy attorney, James Sullivan (“Sullivan”), was aware of the state court negotiations, he did not represent Debtor in these negotiations. Sullivan did, however, inform Jeff Moyer, the chapter 7 trustee (“Trustee”), of the negotiations and the proposed settlement.

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Cite This Page — Counsel Stack

Bluebook (online)
484 B.R. 311, 2012 Bankr. LEXIS 5908, 2012 WL 6719113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-degroot-bap6-2012.