Tucker, In re
Decision Date | 29 March 1993 |
Docket Number | No. 91-16370,91-16370 |
Citation | 989 F.2d 328 |
Parties | Bankr. L. Rep. P 75,205 In re Barry G. TUCKER; Patricia A. Tucker, Debtors. 550 WEST INA ROAD TRUST, Appellant, v. Barry G. TUCKER; Patricia A. Tucker, Appellees. |
Court | U.S. Court of Appeals — Ninth Circuit |
Michael M. Neal, Seefeldt, Sparks & Neal and Kevin Miniat, Tucson, AZ, for appellant.
Alan R. Solot, Tilton & Solot, Tucson, AZ, for appellees.
Appeal from the United States Bankruptcy Appellate Panel for the Ninth Circuit, Russell, Perris, and Meyers, Judges, Presiding.
Before: PREGERSON, BOOCHEVER and BEEZER, Circuit Judges.
The 550 West Ina Road Trust appeals the Bankruptcy Appellate Panel's (BAP) judgment affirming the bankruptcy court's confirmation of Barry and Patricia Tucker's Chapter 13 plan. The Trust primarily argues the plan should not have been confirmed because the Tuckers, shortly before filing for bankruptcy, concealed funds and prevented a deputy sheriff from seizing those funds in partial satisfaction of a judgment. We have jurisdiction under 28 U.S.C. § 158(d), and we reverse and remand.
The Trust obtained a judgment for about $50,000 against the Tuckers and executed on the judgment when Mr. Miniat, an attorney for the Trust, believed the Tuckers had approximately $7,000 in cash. Mr. Tucker testified as follows on the circumstances surrounding the $7,000 and the inquiries by the executing deputy sheriff:
Mr. Miniat: Okay, so your wife has full knowledge of this money, and you give it to her. And tell me what you say to her when you give her the $7,000 in currency.
Mr. Tucker: I say, put it somewhere.
. . . . .
. . . . .
. . . . .
. . . . .
. . . . .
Mr. Tucker insists he did not intend to deceive the deputy sheriff, and he "meant to convey that [he] did not have $7,000 to hand over to her on the spot to settle the judgment."
Within a few weeks, the Tuckers paid $6,500 on a loan that was fully secured by their residence and filed a Chapter 13 bankruptcy petition. The loan payment increased the Tuckers' exempt equity interest in their residence by the amount of the payment, effectively placing the $6,500 beyond the reach of creditors.
The Tuckers proposed a plan that provided for payment of $791 to the Trust. The Trust objected to plan confirmation, raising the issue that the Tuckers had not acted in good faith. The parties filed declarations, which incorporated the above testimony, and a hearing occurred. The bankruptcy court confirmed the plan using a pre-printed form.
We independently review the bankruptcy court's decision. In re Kimura, 969 F.2d 806, 810 (9th Cir.1992). Findings of fact are reviewed for clear error and conclusions of law are reviewed de novo. Id.
The Trust argues the plan was not proposed in "good faith." 11 U.S.C. § 1325(a)(3). The bankruptcy court must consider the totality of circumstances, including prepetition conduct, in deciding whether the debtor has "acted equitably." In re Goeb, 675 F.2d 1386, 1390 (9th Cir.1982).
Nothing said, written or signed by the bankruptcy court provides any basis for overruling the Trust's good faith objection. The pre-printed confirmation order and associated minute entry order comprise the entire record of the court's ruling. Those orders contain no factual findings and fail to address the Tuckers' asserted bad faith refusal to comply with the deputy sheriff's demand. Instead, the confirmation order merely quotes a portion of 11 U.S.C. § 1325(a)(3) in stating "the plan has been proposed in good faith." This quotation does not...
To continue reading
Request your trial-
In re Aquino
...citation omitted), citing Drummond v. Welsh (In re Welsh), 711 F.3d 1120, 1131 (9th Cir. 2013) and 550 West Ina Road Trust v. Tucker (In re Tucker), 989 F.2d 328, 330 (9th Cir. 1993). In Meyer v. Lepe (In re Lepe), 470 B.R. 851, 856 (9th Cir. BAP 2012), the Ninth Circuit Bankruptcy Appellat......
-
In re Sisk
...Where courts fail to factually support their good faith determinations, this Court has remanded for further findings. In re Tucker , 989 F.2d 328, 330 (9th Cir. 1993).Here, the courts below relied on their erroneous interpretation of the Code to determine that the Debtors lacked good faith.......
-
In re McGillis
...enactment of the Section 1325(b) minimum payment requirements of 1984. See, e.g. In re Smith, 286 F.3d 461 (7th Cir.2002); In re Tucker, 989 F.2d 328 (9th Cir.1993); In re Rasmussen, 888 F.2d 703, 704 (10th Cir. 1989). 27. Dismissal under Section 707(b)(2) is not completely guaranteed becau......
-
Lowenschuss, In re
...either made no factual findings or ambiguous factual findings, requiring remand to the bankruptcy court. See 550 West Ina Road Trust v. Tucker, 989 F.2d 328, 330 (9th Cir.1993) (good faith); Great Western Bank v. Sierra Woods Group, 953 F.2d 1174, 1176 (9th Cir.1992) (fairness); Oaks of Woo......