Memorandum and Ruling Sustaining Objection, In Part, And Allowing Claim 11-2, In Part
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Chief Judge Ann M. Nevins
Order Denying Motion for an Award of Costs and Fees
Memorandum of Decision and Ruling Granting Plaintiff's Motion To Dismiss Count One of Defendant's Counterclaim
Judge James J. Tancredi
Judge Julie A. Manning
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ORDER OVERRULING DEBTOR'S OBJECTION TO CLAIM No.6 (ECF Nos. 46, 72, and 80), AND GRANTING TRUSTEE'S MOTION TO DISMISS WITH A ONE YEAR BAR TO FILING A CASE (ECF Nos. 43, 49, and 98). The Debtor's Chapter 13 case was filed on September 19, 2016. On February 23, 2017 (ECF No. 46), May 16, 2017 (ECF No. 72), and June 5 2017 (ECF No. 80), the Debtor filed three objections to Proof of Claim No. 6 (collectively, the "Objections to Claim No. 6"), filed on behalf of U.S. Bank National Association, as Trustee for Lehman XS Trust Mortgage Pass-Through Certificates Series 2006-12N Creditor (the "Secured Creditor"). A hearing on the Objections to Claim No. 6 was held on May 16, 2017. The Objections to Claim No. 6 were placed under advisement on June 29, 2017. On February 6, 2017, the Chapter 13 Trustee filed a Motion to Dismiss the Debtor's case (the 'Motion to Dismiss', ECF No. 43). The Debtor filed objections to the Motion to Dismiss on March 1, 2017 and August 17, 2017 (collectively, the 'Objections to the Motion to Dismiss', ECF Nos. 49 and 98). A hearing on the Motion to Dismiss was held on August 17, 2017. The Motion to Dismiss was placed under advisement at the conclusion of the hearing. After careful review of (i) the Debtor's conduct in and the record of the Debtor's bankruptcy case; (ii) the Debtor's conduct in and record of the pending foreclosure action, evidence of which is contained in the Secured Creditor's Response to Objections to Claim No. 6 (ECF No. 90); (iii) the arguments advanced by the parties; and (iv) for the reasons stated on the record during the hearings held on May 16, 2017 and August 17, 2017 it is hereby ORDERED: Pursuant to Fed. R. Bankr. P. 3001(f), “[a] proof of claim executed and filed in accordance with.. [the Bankruptcy Rules] shall constitute prima facie evidence of the validity and amount of the claim.” The burden of persuasion under the bankruptcy claims procedure always lies with the claimant, who must comply with Fed. R. Bankr. P. 3001 by alleging facts in the proof of claim that are sufficient to support the claim. If the claimant satisfies these requirements, the burden of going forward with the evidence then shifts to the objecting party to produce evidence at least equal in probative force to that offered by the proof of claim and which, if believed, would refute at least one of the allegations that is essential to the claim's legal sufficiency. In re Jorczak, 314 B.R. 474, 481 (Bankr. D. Conn. 2004) (internal citations omitted). The Creditor satisfied the requirements of the Bankruptcy Rules and therefore, the burden shifted to the Debtor to overcome the prima facie validity and amount of the claim. The Debtor has not put forth sufficient evidence to rebut the Creditor's claim and therefore Objections to Claim No. 6 are OVERRULED and Claim No. 6 is deemed to be an allowed secured claim in accordance with 11 U.S.C. § 502; and it is further ORDERED: Pursuant to 11 U.S.C. § 1307(c), the Motion to Dismiss is GRANTED and the Debtor's case is dismissed due to unreasonable delay that is prejudicial to creditors caused by the Debtor: (i) filing a bankruptcy petition to stop an evidentiary hearing requested by the Debtor that was scheduled to be held on September 20, 2016, in a foreclosure action pending in the Connecticut Superior Court Judicial District of Stamford/Norwalk bearing Index No. FST-CV13-6020232-S, entitled U.S. Bank National Association, as Trustee for Lehman XS Trust v. Francis O'Hara, et. al, following the entry of judgment of foreclosure against the Debtor, which judgment was reopened upon the granting of a motion filed by the Debtor; (ii) failing to file a comprehensible Chapter 13 Plan or a Chapter 13 Plan that is confirmable under the Bankruptcy Code, including the Debtor's Amended Chapter 13 Plan filed on August 15, 2017 (ECF No. 97); and is it further ORDERED: Pursuant to 11 U.S.C. §§ 349(a) and 105, cause exists to condition the dismissal of the Debtor's case with prejudice and therefore the Debtor is barred from filing for relief under any chapter of the Bankruptcy Code, in any bankruptcy court, for a period of not less than one (1) year from the date of the entry of this Order. See In re Casse, 198 F.3d 327 (2d Cir. 1999); In re Peia, 204 B.R. 310, 314 (Bankr. D. Conn. 1996), In re Felberman, 196 B.R. 678, 682 (Bankr. S.D.N.Y. 1995); and it is further ORDERED: At or before 5:00 p.m. on January 24, 2018, the Clerk's Office shall serve this Order upon the Debtor at the address provided by the Debtor on his petition. The Clerk's Office is also directed to close the Debtor's case and dismiss and close all pending adversary proceedings. Signed by Chief Judge Julie A. Manning on January 24, 2018. (RE: 43 Motion to Dismiss Case filed by Trustee Molly T. Whiton, 46 Objection to Claim filed by Debtor Edward James O'Hara, 49 Objection filed by Debtor Edward James O'Hara, 72 Objection to Claim filed by Debtor Edward James O'Hara, 80 Objection to Claim filed by Debtor Edward James O'Hara, 90 Response filed by Creditor U.S. Bank National Association, as Trustee for Lehman XS Trust Mortgage Pass-through Certificates Series 2006-12N, 94 Supplemental Document filed by Debtor Edward James O'Hara, 98 Objection filed by Debtor Edward James O'Hara). |
Debtor Sean Dunne's Motion For Stay Pending Appeal
Order Granting Motion For In Rem Relief From Automatic Stay
Order Granting Amended Motion To Dismiss With A One Year Bar To Filing A Case
| ORDER GRANTING MOTION TO DISMISS CASE FOR OVER SECURED DEBT LIMIT (Doc. #36). The Debtor herein, having filed a petition for relief under Chapter 13 of the Bankruptcy Code on April 18, 2017, and the Chapter 13 Trustee having filed a motion to dismiss the Debtor's case (Motion) on July 3, 2017, and the Debtor having filed opposition to the Motion on September 7, 2017 and September 26, 2017, and a hearing on the Motion having been held on September 7, 2017, it is hereby ORDERED: The Debtor's case is dismissed based upon the Debtor exceeding Chapter 13 secured debt limits under 11 U.S.C. § 109(e). To determine whether a debtor's secured debt exceeds Chapter 13 secured debt limits under § 109(e), a court may consider the debtor's in rem liability on a foreclosure judgment entered prepetition. See In re Branam, 476 B.R. 333, 337-38 (Bankr. S.D. Fla. 2012) (citing Johnson v. Home State Bank, 501 U.S. 78, 78-79 (1991)). A Chapter 7 discharge extinguishes the in personam liability on a debt secured by the debtor's property but the in rem liability survives or passes through bankruptcy. See Johnson, 501 U.S. 78 at 83 (Chapter 7 discharges in personam liability but a creditors right to foreclose on the mortgage survives or passes through the bankruptcy.). Even if a debtor disputes the existence of liability, if the amount of a debt is calculable with certainty or operation by law, and if the events giving rise to liability occurred prepetition, then the readily calculable debt can be counted for eligibility purposes under § 109(e). See In re Mazzeo, 131 F.3d 295, 304-05 (2d Cir. 1997); In re Slack, 187 F.3d 1070, 1073-75 (9th Cir. 1999); United States v. Verdunn, 89 F.3d 799, 802 (11th Cir. 1996) (claim is plainly liquidated if its amount is made certain by operation of law); In re Barcal, 213 B.R. 1008, 1012 (8th Cir. BAP 1997); In re Imagine Fulfillment Servs., LLC, 489 B.R. 136, 147 (Bankr. C.D. Cal. 2013) (claim is not contingent if events giving rise to liability occurred prepetition); In re Mitchell, 255 B.R. 345 (Bankr. D. Mass. 2000) (claim is liquidated so long as amount of liability is readily calculable even if debtor disputes liability). Here, the Debtor's secured debt arising under the prepetition foreclosure judgments exceed the applicable statutory maximum of $1,184,200. For those reasons, the Motion is GRANTED. At or before 5:00 p.m. October 27, 2017, the Clerk's Office shall serve this Order upon the Debtor via Certified Mail, return receipt requested, at 2 Angora Road, Westport, Connecticut 06880, which is the address listed on the Debtor's petition. The Clerk's Office is also directed to close the Debtor's Chapter 13 case and all pending adversary proceedings. Signed by Chief Judge Julie A. Manning on October 27, 2017. |