- Case Type:
- Consumer
- Case Status:
- Affirmed
- Citation:
- United States Bankruptcy Appellate Panel Case No. 20-6014 (8th Circuit, Nov 25,2020) Published
- Tag(s):
-
- Ruling:
- The BAP affirmed the bankruptcy court (D. Neb.) in full in that cause existed to modify the automatic stay, because the Debtor was in default under the plan.
The BAP agreed with the bankruptcy court that the issues before the court were less about the automatic stay and more about failure to make payments under a confirmed plan. The BAP also agreed with the bankruptcy court that other provisions of the plan did not excuse the default or mandate that the Creditor renegotiate the debt before seeking relief from the automatic stay.
- Procedural context:
- The Debtor filed a Chapter 12 Plan that the bankruptcy court confirmed. The plan contained default provisions, referred to as drop-dead provisions, which allowed the Creditor to receive relief from the automatic stay, even without a hearing.
The Debtor defaulted on the payments to the Creditor, and the Creditor relying on the drop-dead provisions sought relief from the automatic stay. The Debtor objected, and the bankruptcy court heard the matter.
The bankruptcy court granted relief from the automatic stay and memorialized its ruling in a text order on the docket.
The Debtor appealed.
- Facts:
- The Debtor filed a Chapter 12 bankruptcy.
As part of the Debtor's plan, the Debtor was obligated to pay First Central Bank McCook (Creditor) over $87,000. This amount covered two loans. The first of approximately $51,000 was guaranteed by Farm Service Agency (FSA) and secured by real estate described in the plan as FSA Real Estate. The second of approximately was secured by real estate described as Real Estate, but the second loan was not guaranteed by FSA.
The plan contained provisions which allowed the Creditor to receive relief from the automatic stay without the need for a hearing.
The Debtor paid approximately $55,000 to the Creditor, but the Debtor failed to pay the balance by the deadline.
- Judge(s):
- The Hons. Schermer, Nail, and Dow
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