In re Warwick

7 Citing cases

  1. U.S. v. Munson

    248 B.R. 343 (C.D. Ill. 2000)   Cited 13 times
    Stating that IRS did not lose its right to set off prepetition income tax refund payable to debtor against debtor's prepetition tax liability from another tax year, despite IRS's failure to object to debtor's reorganization plan because giving precedence to Chapter 13 confirmation provision "would ignore and render meaningless the plain language of ยง 553"

    1993); In re Womack, 188 B.R. 259, 262 (Bankr.E.D.Ark.1995); In re Warwick, 179 B.R. 582, 584-85 (Bankr.W.D.Ark.1995); In re Olson, 175 B.R. 30 (Bankr.D.Neb.1994); In re Whitaker, 173 B.R. 359 (Bankr.S.D.Ohio 1994).

  2. In re Ealy

    392 B.R. 408 (Bankr. E.D. Ark. 2008)   Cited 13 times   7 Legal Analyses

    Court for the Eastern and Western Districts of Arkansas have uniformly adopted the former view that confirmation of a plan does not affect a creditor's prepetition setoff rights. See, e.g., Dowdy, 314 B.R. at 188 (holding that the language of ยง 553 indicating that, with certain specifically enumerated exceptions, the provisions of the Code would not affect any right that creditors otherwise had to set off mutual debts, trumped section of the Code providing for the binding effect of confirmed chapter 11 plan and prevented debtor from successfully asserting that, simply because its confirmed plan did not recognize right of setoff in the IRS, the IRS had no postconfirmation right to setoff against tax refund owing to debtor); Womack, 188 B.R. at 262 (holding that the fact that Chapter 13 plan providing for full payment of IRS debt had been confirmed did not preclude IRS from setting off refund against prepetition tax debt); In re Tillery, 179 B.R. 576, 578 (Bankr. W.D. Ark. 1995) (same); In re Warwick, 179 B.R. 582, 584-85 (Bankr. W.D. Ark. 1995) (same). Significantly, these decisions are based on the "unequivocal language" of ยง 553, which states

  3. In re Robinson

    Case No. 05-46936 (Bankr. W.D. Mo. May. 17, 2006)

    This Court agrees with those courts that hold that the plain language of the statute controls and that setoff is not affected by the confirmation process under ยง 1327. See In re Bare, 284 B.R. 870, 874-75 (Bankr. N.D. Ill. 2002); Munson, 248 B.R. at 346; Okwukwu, 210 B.R. at 197; In re Tillery, 179 B.R. 576 (Bankr. W.D. Ark. 1995); Womack, 188 B.R. at 261-62; In reWarwick, 179 B.R. 582 (Bankr. W.D. Ark. 1995); In re Olson, 175 B.R. 30 (Bankr. D. Neb. 1994); In re Whitaker, 173 B.R. 359 (Bankr. S.D. Ohio 1994) ; In re Orlinski, 140 B.R. 600 (Bankr. S.D. Ga. 1991). Thus, the fact that Debtor's plan had already been confirmed under ยง 1327 does not affect the ability of the IRS to exercise its right to offset the debts under ยง 553 and ยง 6402 of the Internal Revenue Code.

  4. In re Ronnie Dowdy, Inc.

    314 B.R. 182 (Bankr. E.D. Ark. 2004)   Cited 5 times   1 Legal Analyses
    Holding that the language of ยง 553 indicating that, with certain specifically enumerated exceptions, the provisions of the Code would not affect any right that creditors otherwise had to set off mutual debts, trumped section of the Code providing for the binding effect of confirmed chapter 11 plan and prevented debtor from successfully asserting that, simply because its confirmed plan did not recognize right of setoff in the IRS, the IRS had no postconfirmation right to setoff against tax refund owing to debtor

    This view of ยง 553 is in accord with prior decisions in the Bankruptcy Court for the Eastern and Western Districts of Arkansas. See Womack, 188 B.R. at 262; In re Warwick; 179 B.R. 582, 584-85 (Bankr. W.D. Ark. 1995); In re Tillery, 179 B.R. 576, 578-79 (Bankr. W.D. Ark. 1995). III.Waiver of Right to Setoff

  5. Matter of Okwukwu

    210 B.R. 194 (Bankr. N.D. Ala. 1997)   Cited 5 times
    In Matter of Okwukwu, 210 B.R. 194, 196 (Bankr. N.D. Ala. 1997) (citingIn re Kleather, 208 B.R. 406 (Bankr. S.D. Ohio 1997)).

    Other courts have rejected this argument recognizing that confirmation pursuant to ยง 1327 does not alter a creditor's right of setoff based upon the plain language of ยง 553(a) which provides that except as otherwise provided in ยงยง 553, 362, and 363, title 11 does not affect a creditor's right of setoff. In re Tillery, 179 B.R. 576 (Bankr.W.D.Ark. 1995); In re Warwick, 179 B.R. 582 (Bankr. W.D.Ark. 1995); In re Orlinski, 140 B.R. 600 (Bankr.S.D.Ga. 1991). The Court adopts the latter analysis and finds that Okwukwu's confirmed plan does not preclude the IRS' right of setoff.

  6. In re Connecticut Pizza, Inc.

    193 B.R. 217 (Bankr. D. Md. 1996)   Cited 44 times
    Finding debtor's phone number was property of the estate, despite phone company policy which stated customers have no property right in telephone numbers

    Consistent with the explicit purpose of section 362(a)(3), actions that tend to maintain the status quo are less likely to be considered violations of the automatic stay. See, e.g., In re Warwick, 179 B.R. 582, 586-87 (Bankr.W.D.Ark. 1995); In re Tillery, 179 B.R. 576, 580 (Bankr.W.D.Ark. 1995); Sousa v. Bank of Newport, 170 B.R. 492, 494 (D.R.I. 1994). On the other hand, affirmative acts to obtain possession of or control over estate property are more likely to be deemed as violations of section 362(a)(3).

  7. In re Holder

    182 B.R. 770 (Bankr. M.D. Tenn. 1995)   Cited 27 times
    Holding that by affirmatively entering into agreed order with Chapter 11 trustee settling its claims, the United States Custom Service acted inconsistently with its right of setoff and thereby waived its right of setoff against a tax refund owed by the IRS to the debtor

    ited States ex rel. I.R.S. v. Norton, 717 F.2d 767, 774 (3d Cir. 1983) (finding creditor's failure to object to confirmation of the Plan barred it from asserting setoff post-confirmation); In re Hackney, 20 B.R. 158, 159 (Bankr.D.Idaho 1982) (holding creditor bound by terms of payment as provided for in the confirmed Plan and creditor had no right to setoff post-confirmation); In re Holcomb, 18 B.R. 839, 841 (Bankr.S.D.Ohio 1982) (alternative holding); In re Alexander, 31 B.R. 389 (Bankr.S.D.Ohio 1983) (holding setoff was barred because ยง 1327 vests property of the estate in the debtor, and creditor did not object to confirmation); In re Warden, 36 B.R. 968, 972 (Bankr.D.Utah 1984) (holding unasserted right to setoff was waived upon confirmation); see also U.S. v. Johnson (In re Johnson), 136 B.R. 306 (Bankr.M.D.Ga. 1991) (debtor's confirmed Plan precluded IRS setoff if debtor could show IRS adequately protected, but confirmation does not forfeit a creditor's right to setoff). But see In re Warwick, 179 B.R. 582 (Bankr.W.D.Ark. 1995) (confirmation of Chapter 13 Plan does not preclude creditor's right to setoff); In re Tillery, 179 B.R. 576 (Bankr.W.D.Ark. 1995) (same); In re Olson, 175 B.R. 30 (Bankr.D.Neb. 1994); United States v. Orlinski (In re Orlinski), 140 B.R. 600, 602 (Bankr.S.D.Ga. 1991) (holding that confirmation of Chapter 13 Plan does not bar setoff of mutual prepetition debts).See In re Davidovich, 901 F.2d 1533, 1538-39 (10th Cir. 1990); Friedlander v. Doherty, 851 F. Supp. 515 (N.D.N.Y. 1994); Camelback Hospital, Inc. v. Buckenmaier (In re Buckenmaier), 127 B.R. 233, 237-37 (9th Cir. BAP 1991) (also noting most cases hold that a valid setoff claim cannot be defeated by a discharge in bankruptcy); In re Morgan, 77 B.R. 81, 85 (Bankr.S.D.Miss.