Decisions of 2004



Holland, Disposable Income, Retirement, Annuity, August 13, 2004


This is important because the resultant taxes and penalties from Donna’s default will be allowed as priority claims under § 1305(a)(1), and must be paid in full ahead of general unsecured claims as discussed in Mendoza, 274 B.R. at 525 n.3. 11 U.S.C. § 1322(a)(3). The Trustee’s “disposable income” objection in the instant case overreaches that of the “net” requested by the trustee in Estes, 254 B.R. at 266, and as in Mendoza Donna’s tax liability resulting from default in repayment of her TSA loans in the instant case could result in unsecured creditors receiving less of a distribution than if the Debtors were permitted to continue to pay the loan.

Debtors’ Plan term is 3 years and plan payments are currently $1,380.28. Over that plan term the $88 loan repayments total $3,168. Based upon the instant record, the Court cannot make credible findings to ascertain the “net” contribution which would be required to be contributed to Debtors’ Plan for distribution to unsecured creditors to be consistent with Estes.

2004 Mont. B.R. 1

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Miller, Chapter 11, Sanctions


The award of sanctions against Bonnie G. Snavely is fixed in the sum of $24,895.75, payable to the respective law firms in the amounts above set forth1.  In making this reasonable award of fees, I must take note that Snavely has elected to continue this litigation through the appeal process. In the event Snavely does not timely pay the fees as ordered, then a delay in payment would justify an increase in the award. Missouri v. Jenkins, 491 U.S. 274, 284 (1989) (a trial court has discretion to compensate the award recipient for delay in payment); Gates v. Deukmejian, 987 F.2d 1392, 1407 (9th Cir. 1992) (length of the delay in payment is a consideration in deciding whether an award of a current rather than historic rate is warranted where the litigation is not promptly resolved, so that adjustment for inflation or loss of use of the funds, or interest charge may be appropriate).

2004 Mont. B.R. 2

Darby Lumber, Appeal, Federal Rules of Bankruptcy Procedure


Local Rule 9014 is wholly consistent with FRBP 9014, reflecting the Montana Bankruptcy Court's permissible exercise of hits discretion to apply the Rules of Civil Procedure to contested matters as an exception rather than a rule.























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