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Judges' Corner Archive

Mon, 7/03/2006 - 5:00 am

In order to provide the bar with feedback on developments concerning the implementation of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), consumer bankruptcy practitioners should be aware of the following decisions recently rendered by the Court:

1. In re Fleming, C/A No. 06-00888-jw, slip op. (Bankr D.S.C. June 30, 2006) (determining whether termination of the automatic stay under 11 U.S.C. § 362(c)(3)(A) prevents confirmation of a Chapter 13 plan).

2. In re Thomas, C/A No. 06-01961-dd, slip op. (Bankr D.S.C. June 28, 2006) (providing a detailed review, analysis, and application of 11 U.S.C. § 362(c)(3) and the good faith standard as recognized by the Court).

3. In re Jupiter-Part 1, C/A No. 06-00963-jw, slip op. (Bankr D.S.C. June 21, 2006) (addressing the extent by which the automatic stay terminates under 11 U.S.C. § 362(c)(3)(A)).

4. In re Franklin, C/A No. 06-01730-hb, slip op. (Bankr D.S.C. June 12, 2006) (determining whether a case is “pending” for purposes of applying 11 U.S.C. § 362(c)(3)).

5. In re Brown, C/A No. 06-00197-jw, slip op. (Bankr. D.S.C. Apr. 25, 2006) (determining the proper valuation standard to be utilized under 11 U.S.C. § 506 for purposes of redemption under 11 U.S.C. § 722)).

6. In re Cushman, C/A No. 05-44954-jw, slip op. (Bankr. D.S.C. Apr. 6, 2006) (defining the “applicable commitment period” referenced in 11 U.S.C. § 1325(b)).

7. In re Turner, C/A No. 05-45355-jw, slip op. (Bankr. D.S.C. Mar. 31, 2006) (determining the meaning and application of the flush language found after 11 U.S.C. § 1325(a)(9)).

Please make note of these opinions as they bear upon significant issues concerning the BAPCPA’s impact on consumer bankruptcy practice in this District.

Tue, 6/20/2006 - 5:00 am

Due to conflicts of interest regarding the new judges, beginning August 1, 2006, motions for relief from stay must be scheduled before the judge to whom the case is assigned, regardless of court division. Similarly, Motions to Extend or Impose the Stay are to be scheduled before the judge assigned the case.

If sufficient calendar dates to insure a timely hearing are not available, contact the courtroom deputies at 803-765-5011.

There is no requirement to reschedule motions for relief from stay previously scheduled unless you are contacted by the Clerk’s office.

Wed, 5/24/2006 - 5:00 am

David R. Duncan shall begin his service as a United States Bankruptcy Judge for this District upon the administration of oath in a private ceremony on Friday, May 26, 2006. He will have a public investiture ceremony on the afternoon of July 12, 2006. Judge Burris and I are pleased to welcome David as a colleague to the bench.

Mon, 5/22/2006 - 5:00 am

The Judges of the United States Bankruptcy Court for the District of South Carolina are now accepting applications from interested parties for the position of Clerk of Court. The position announcement is posted on the Web Page and any confidential questions may be directed to the Judges or the Court’s Human Resource Administrator.

The Judges will be assisted in the interview selection process by the Court’s Advisory Committees of practitioners and employees. Those experienced in the private practice of bankruptcy law and who otherwise meet the qualification requirements are encouraged to apply.

Fri, 5/12/2006 - 5:00 am

Brown Bag Lunch with the Judges

Judge Burris, David Duncan and I would like to invite members of the consumer practice bar to share their experiences under the Reform Act during a “brown bag” lunch at 12:30 p.m. Thursday, May 18, 2006, at the Bankruptcy Courthouse in Columbia. Attendance is limited to attorneys in consumer practice (both debtor and creditor). Since space is also limited, please indicate your interest in attending by e-mail to Cheryl at no later than Tuesday, May 16, 2006 at 2:00 p.m. Attendance will be on a first come basis and you will be notified of further details.

Recent Statistics

A recent survey by the American Bankruptcy Institute indicates that our District has the lowest percentage consumer bankruptcy filings in the United States. The survey indicates that last year South Carolina averaged 1 consumer bankruptcy filing for every 123.16 households. The national average for 2005 was 1 filing for every 60 households. Nationally, bankruptcy filings are down an average of 73% from 2005. Bankruptcy filings in this District are down this year by 64% compared to the previous year. Pro se filings have averaged 3% year to date. Despite the reduction in filings, the Court continues to maintain a full docket as it considers many of the issues raised by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. The Court posts its recent opinions on the Reform Act issues on its web page.

Charleston Division

I would like to express my appreciation to the consumer lawyers practicing in the Charleston division for their adjustment to new hearing procedures in Chapter 13 cases. Hopefully, these procedures have improved efficiencies, allowed more time for contested matters, and eliminated wait time for parties and counsel. The bar’s quick adjustment and acceptance has been of great assistance to me in this busy time.

Tue, 5/02/2006 - 5:00 am

I recently attended a Federal Judicial Center conference in New York attended by the majority of the Bankruptcy Judges in the country. As would be expected, much of the discussion was on issues arising under the Reform Act of 2005.

It is fair to say that our district’s procedures and rulings to date fall within the majority of opinions or main stream. To date, the Court has issued several decisions governed by the Reform Act and each decision is available on the Court’s web site:

1. In re Dansby, C/A No. 05-45490-W (Bankr. D.S.C. Feb. 10, 2006) (determining under what circumstances a debtor may qualify for a waiver of pre-petition credit counseling).

2. In re Turner, C/A No. 05-45355-W (Bankr. D.S.C. Mar. 31, 2006) (sustaining an objection to a plan that proposed to bifurcate the claim of a creditor secured by a purchase money interest in a vehicle contrary to §1325(a)(5)).

3. In re Cushman, C/A No. 05-44954-W (Bankr. D.S.C. Apr. 6, 2006) (holding that the applicable commitment period for a chapter 13 plan is five years if the debtor is above median income, is paying less than 100% to unsecured creditors, and there is an objection under § 1325(b)).

4. In re Capers, C/A No. 06-80042-W (Bankr. D.S.C. Apr. 12, 2006) (interpreting § 1328(f) to prohibit a debtor from receiving a discharge because debtor converted her previous chapter 13 case to a chapter 7, received a chapter 7 discharge, and filed her current chapter 13 case within four years of the previous case).

5. In re Drahnak, C/A No. 06-80044-W (Bankr. D.S.C. Apr. 11, 2006) (holding that the application of § 1328(f) is not unconstitutional).

6. In re Ratzlaff, C/A No. 06-80048-W (Bankr. D.S.C. Apr. 24, 2006) (discharge prohibition period of § 1328(f) is determined by the petition date of a debtor’s current chapter 13 verses the debtor’s petition date of their previous case in which they received a discharge).

7. In re Brown, C/A No. 06-00197-W (Bankr. D.S.C. Apr. 24, 2006) (holding on a motion to redeem that the replacement value of the property acquired for personal, family or household use determines the value of the property).

The Court has also issued numerous opinions on the application of § 362(c)(3) in chapter 13 cases.

Prominent issues not yet ruled on in this District include the following:

1. whether a chapter 13 plan can be confirmed without the automatic stay;

2. does the failure to extend the stay effect all creditors or just those with pending judicial actions;

3. may the Court confirm a plan if the plan is contrary to § 1325(a)(5) and the effected creditor does not object;

4. is a hearing or evidence required prior to the entry of an order confirming the termination of the automatic stay;

5. what is the required dividend to unsecured creditors in a chapter 13 if an objection is raised under § 1325(b);

We are placing orders, which address issues arising under the Reform Act, immediately on the opinions section of the web page.

Wed, 4/05/2006 - 5:00 am

In a continuing effort to provide the bar with feedback on developments or trends observed since the enactment of the Reform Act, Judge Waites offers the following.

The Court would call your attention to recent problems arising in cases filed under the provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005:

  1. With respect to jointly filed individual cases, there have been numerous instances where counsel for debtors have failed to file a certificate of credit counseling for each of the co-debtors despite the fact that they both properly completed credit counseling pre-petition. Failure to properly file a certificate of credit counseling may cause the dismissal of the case.

  2. The portions of Schedules I and J that describe any anticipated increase or decrease in income or expenditures (or a lack thereof) are often left incomplete. These matters are monitored by the Clerk’s office. Failure to file completed Schedules may result in dismissal of a case.

  3. With respect to Motions to Extend Stay, the Court has observed that counsel for debtors are not always aware of the latest developments regarding debtors’ employment. Schedules, particularly those relating to income and expenses, should be reviewed and amended prior to the hearing. Furthermore, debtors without sufficient financial means to fund a plan (deficit budgets) may not be able to carry their burden of proof in order to have the stay extended, unless those debtors can show significant equity in their real property, and consent to conversion of their case to Chapter 7 in the event their Chapter 13 fails. Finally, in the event the Court is inclined to extend the stay, counsel for debtors should be prepared to e-mail an order that grants the extension in a form which conforms to the language used in prior orders listed on the Court’s website.

  4. The Court is receiving increasing numbers of motions for an order confirming termination of stay pursuant to 11 U.S.C. § 521(a)(6), in which the debtor fails to perform their statement of intent. To demonstrate the existence of such facts, the motion should be accompanied by an affidavit detailing the facts in support. The Court may be unable to issue an order without such affidavit.

We hope this information is helpful to the bar.

Tue, 4/04/2006 - 5:00 am

I am pleased to report that Judge Burris has joined me in the case assignment rotation. At the end of March, a number of pending Chapter 7 and Chapter 11 cases were transferred to her and she was placed in the new case assignment rotation for the Greenville/Spartanburg Division. Her chambers telephone number in Spartanburg is (864)573-8782. Her Judicial Assistant is Reggie Reinovsky, former Judicial Assistant to the Honorable J. Bratton Davis. Judge Burris’ law clerk is Susan Sykes. Susan received her B.A. from Davidson College and her J.D. from the University of Georgia School of Law. She was previously a Partner with Haynsworth, Baldwin, Johnson and Greaves in Greenville, South Carolina.

Additionally, the Court will not presently name an acting Clerk of Court nor seek applications for a permanent clerk. Chief Deputy, Tammi Hellwig, with the support of other court managers, will supervise the operations of the Clerk’s Office. All questions or issues usually directed to the Clerk of Court should be directed to Tammi. Furthmore, Judge Burris and I stand ready to address appropriate legal or procedural questions.

Mon, 3/27/2006 - 4:00 am

The Judges of this Court have received and accepted the resignation of the Clerk of Court as of April 2, 2006. Ms. Blume has accepted a pro se law clerk position with the District Court. We wish her well in her future endeavors.

Thu, 3/16/2006 - 4:00 am

Beginning next week, Judge Burris will preside at various hearings scheduled on Judge Waites' docket. An effort will be made to notify counsel in the affected hearings early next week. Furthermore, in the next several weeks a volume of cases will be reassigned to Judge Burris - notification to be indicated by a NEF.

Until advised otherwise, Judge Burris has requested that original pleadings, or copies of pleadings/memos, etc. not be sent to her at the Spartanburg courthouse address. The filing of pleadings should follow the same customary procedures. Further, any inquiries/communications involving cases or hearings should be directed to the clerk's office in Columbia.