In re Ottman

534 B.R. 18, 2015 Bankr. LEXIS 2573, 2015 WL 4572352
CourtUnited States Bankruptcy Court, D. Colorado
DecidedJune 26, 2015
DocketCase No. 11-35219 SBB
StatusPublished
Cited by2 cases

This text of 534 B.R. 18 (In re Ottman) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Ottman, 534 B.R. 18, 2015 Bankr. LEXIS 2573, 2015 WL 4572352 (Colo. 2015).

Opinion

ORDER DENYING MOTION TO RECUSE JUDGE SIDNEY B. BROOKS

Sidney B. Brooks, United States Bankruptcy Judge

THIS MATTER is before the Court on the Motion to Recuse Judge Sidney B. [20]*20Brooks (Docket No. 122) (the “Motion”) filed by Debtors Bradley Alvin Ottman and Dana Marie Ottman and the response thereto (Docket No. 126) (the “Response”) filed by Standing Chapter 13 Trustee Sally Zeman (the “Trustee”). The Court, having considered the Motion; the Response; the Debtors’ Reply to the Motion (Docket No. 129); the transcript of the April 23, 2015 hearing (the “Transcript”) in this case; the trial exhibits offered by both parties; and the Status Report Regarding Debtors’ Amended Schedules I and J (Docket No. 116); hereby makes the following findings pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure: 1

I. BACKGROUND AND FACTS

A. The Debtors’ Bankruptcy Case

The Debtors filed this Chapter 13 bankruptcy case on October 26, 2011. The Debtors’ Amended Chapter 13 plan was confirmed on September 18, 2012.2

On December 17, 2013, the Debtors filed a motion to modify their Chapter 13 plan, along with amended schedules I & J updating their post-confirmation income and expenses.3 The Trustee objected to the modified plan, and the Court denied the motion to modify following a hearing on March 4, 2014.4 A new modified plan (the “Second Modified Plan”) was proposed on March 18, 2014 (the “Second Motion to Modify”), and the Trustee again objected (the “Trustee’s Objection”).5 A certificate of contested matter was filed on February 13, 2015, and an evidentiary hearing on approval of Debtors’ Second Motion to Modify was set for April 23 and 24, 2015.6

In their Second Motion to Modify, the Debtors asserted that modification of their plan was necessary because Mr. Ottman’s income had substantially decreased. The Trustee’s Objection asserted that the proposed modification was not made in good faith because Mr. Ottman’s December 27, 2013 pay advice showed nearly $1,000 more in monthly income than the Debtors’ amended schedule I, filed on December 17, 2013.7 The Trustee also argued that certain expenses on the Debtors’ amended schedule J were not reasonably necessary for a household of two persons, including business expenses for a real estate business that had not earned income in 2012, 2013, and 2014.8

The Court held an evidentiary hearing on the Second Motion to Modify on April 23, 2015 (the “Hearing”). The matter was not concluded, and the hearing was continued to May 26, 2015. The Court ordered the Debtors to file updated schedules I & J and both parties to file proposed findings of fact and conclusions of law.9 The continued hearing was vacated after the Debt[21]*21ors filed a motion to recuse the undersigned judge.10

B. The Recusal Motion

On May 13, 2015, the Debtors filed their Motion to Recuse Judge Sidney B. Brooks. In their Motion, the Debtors argue that the undersigned Judge should recuse himself because his criticism of Debtors’ counsel, Stephen Berken, during the Hearing was “unwarranted, prejudicial, and created an appearance of impropriety.”11

Specifically, the Debtors identified several instances at the Hearing where they and their counsel felt the Court was “overly critical.” These include:

• An extended discussion of the accuracy and date of the “Schedules I & J” presented by Debtors’ counsel.12
• The Court’s comment that “[n]o, no, no, no. I’ll tell you, this record will be impossible for anybody to fol-low.”13
• The Court’s inquiry as to why a summary of the Debtors’ schedules was not prepared.14
• The Court’s response to Debtors’ counsel’s inquiry as to why Trustee’s counsel was not questioned for not preparing a summary of the Debtors’ schedules: “[b]ut the burden’s on you and you know that the party that has the burden has to dot their I’s and cross their T’s.”15
• The Court’s comment that the hearing was progressing too slowly: “I didn’t think this trial was going to take all day. I thought it was going to take a very short period of time. I’ve got some things that are hounding me on my desk back there. How much longer do you anticipate? We haven’t even had Mr. Ottman.”16
• The Court’s inability to continue beyond 2 p.m. on the day of the Hearing.17

The Motion described the Judge’s tone toward Debtors’ counsel as “one of condescension, a profound lack of respect, and a manner that borders on scorn.”18 The Motion also asserted that the “appearance of impropriety is inescapable due to the Judge’s history with Debtors’ counsel,” but provided no further information.19

C. The Trustee’s Response to the Motion to Recuse

The Trustee’s Response objected to Debtors’ Motion and stated that “the record, as a whole, fail[s] to demonstrate a degree of favoritism or antagonism to Debtors or Debtors’ counsel that shows [the undersigned Judge] is unable to make a fair judgment.”20 The Trustee acknowledges that the undersigned Judge “made comments that were critical of the manner in which Debtors’ counsel was presenting Debtors’ case,” but identified several citations in the record which she asserts demonstrates the Court’s ability to make a fair judgment. These include:

[22]*22• Overruling the Trustee’s objection to a leading question even though the objection was technically correct.21
• The Court’s comment: “And if to [Mr. Berken], you say it’s ‘daunting’ and you say it took ‘months and months and months’ for you to get a handle on it, you can understand, that I want something that I can make sense out of, so that I can rule in favor of your clients.”22
• Providing the Debtors an opportunity to file current Amended Schedules I and J so that the Court could have the current figures which the Debtors desired the Court to consider.23
• Requesting proposed findings of fact and conclusions of law from both parties.24
• The Court’s comment: “I have great sympathy for people [such as the Debtors] that have enormous and unplanned medical expense. It takes the hole out of your budget. I understand that.”25

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Cite This Page — Counsel Stack

Bluebook (online)
534 B.R. 18, 2015 Bankr. LEXIS 2573, 2015 WL 4572352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ottman-cob-2015.