Jodway v. Fifth Third Bank (In re Jodway)

Case Type:
Case Status:
2018 WL 300438 (6th Circuit, Jan 05,2018) Published
Bankruptcy Court correctly dismissed Chapter 13 based on material defaults under confirmed plan where Debtor stopped making plan payments and refused to surrender property notwithstanding plan that provided for surrender. Court would not revoke confirmation where Motion to Revoke was not brought until more than one year after confirmation of Plan,
Procedural context:
After Debtor stopped making payments, Chapter 13 Trustee filed Motion to Dismiss. Bankruptcy Court dismissed case. District Court affirmed dismissal of case. Debtor appealed to Sixth Circuit which also affirmed dismissal.
Debtor's confirmed Chapter 13 plan provided for Debtor to surrender property in Boyne City and to make plan payments for distribution to other creditors. Debtor did not surrender property and vigorously contested lender's efforts to foreclose. Debtor also stopped making plan payments, accruing a delinquency in excess of $40,000. Trustee filed Motion to Dismiss. Debtor did not dispute that he was not making payments and agreed that non-payment was material default. Debtor proposed a Plan Modification to decrease payments in response to Motion to Dismiss. Bankruptcy Court correctly concluded that Debtor could modify the plan to reduce payments only if debtor surrendered property. Debtor refused to do so, and Bankruptcy Court denied modification and dismissed. Debtor also contended that State Court had already stayed foreclosure proceedings, so that Rooker-Feldman prevented Bankruptcy Court from acting. Bankruptcy Court correctly rejected argument as Bankruptcy Court was not acting in super-appellate capacity determining whether state court stay was correct but was instead only determining that debtor's non-payment was material default under plan. Debtor's argument that mortgage was invalid bared by res judicata where debtor had raised same argument on three different occasions, including unsuccessful adversary proceeding in bankruptcy case. Court also denied Debtor's Motion to Revoke Confirmation based on alleged fraud of lender where Motion was not brought within 180 days as required by Section 1330.
Moore, Thapar and Larsen

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