| 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. |
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Opinions
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Judge Julie A. Manning
Order Abstaining From Adversary Proceeding
Memorandum And Order On Objection To Claim 3 And Second Amended Motion For Relief From The Automatic Stay
Memorandum and Order Regarding Insurance Policy/ Proceeds and Motion for Relief from Stay
Memorandum of Decision on Complaint to Determine Dischargeability of Debt
Memorandum of Decision on Complaint Revoking Discharge/Death of Debtor
Memorandum of Decision Regarding Sovereign Immunity Defense in Bankruptcy Proceedings
Memorandum of Decision Regarding Ability to Modify Second Mortgage under 11 U.S.C. § 1322(b)(2)