In re Brady

13 Citing cases

  1. In re Newton

    161 B.R. 207 (Bankr. D. Minn. 1993)   Cited 26 times
    Holding that "obviously, any proposal to toll a debtor's obligation of periodic debt service works a modification of the mortgagee's contractual rights in violation of § 1322(b), whether the tolling is indefinite or for a fixed term. More problematic are proposals such as the one at bar, where a cure would be effected by joint means, one defined by periodic cash payments but only partly efficacious, and the other contingent on a future market transaction"

    See, e.g., In re Brady, 86 B.R. 166, 170 at n. 5 (Bankr.D.Minn. 1988) (noting that "in Minnesota it is unusual for plans to provide for cure of defaults [on home mortgage payments] in any period of time that significantly exceeds 12 months" . . .). Contrary to the accusation made by Ms. Johnson's counsel, however, this approach has not been out of any unthinking adherence to the bare conclusion announced in Whitebread; it has been out of a recognition that Congress intended to strictly circumscribe the ability of Chapter 13 debtors to affect the contractual rights of their home lenders.

  2. In re Adams

    120 B.R. 517 (Bankr. E.D. Mo. 1990)   Cited 3 times

    Moreover, a number of courts have held that § 506(b) is not applicable to a claim for arrearages against a Chapter 13 mortgagor. See, e.g., Appeal of Capps, 836 F.2d 773 (3rd Cir. 1987); In re Terry, 780 F.2d 894 (11th Cir. 1987); In re Laguna, 114 B.R. 214, 20 BCD 891, 892 (9th Cir. BAP 1990) appeal filed, No. 90-15715 (9th Cir. May 29, 1990); In re Brady, 86 B.R. 166 (Bankr.D.Minn. 1988). But see, In re Colegrove, 771 F.2d 119 (6th Cir. 1985).

  3. In re Szostek

    886 F.2d 1405 (3d Cir. 1989)   Cited 337 times
    Holding that § 1325 is not mandatory, but rather "sufficient," whereas § 1322 is mandatory

    Thus, as written, § 1325(a) does not contain requirements for confirmation. In re Brady, 86 B.R. 166, 169 (Bkrtcy.D.Minn. 1988).See also In re Zimble, 47 B.R. 639 (Bkrtcy.D.R.I. 1985), where the bankruptcy court denied the creditor's motion to obtain an increased interest rate to equal the prevailing market rate after a plan had been confirmed.

  4. In re Miller

    570 F.3d 633 (5th Cir. 2009)   Cited 26 times
    Applying state law to the question of surrendering the vehicle in full repayment of the debt

    See, e.g., In re Brady, 86 B.R. 166, 169 (Bankr.D.Minn. 1988) ("While it is always risky trying to determine congressional intent, it is even more perilous in the Bankruptcy Code, since there is virtually no legislative history to speak of and that which does exist tends to be unenlightening.").See, e.g.

  5. Shaw v. Aurgroup Financial Credit Union

    552 F.3d 447 (6th Cir. 2009)   Cited 51 times
    Holding that a creditor's failure to timely object to plan confirmation may be construed as acceptance of the plan

    While several courts have observed that the legislative history of § 1325(a) is not particularly helpful in distilling Congress's intent, see, e.g., In re Brady, 86 B.R. 166, 169 (Bankr.D.Minn. 1988) ("While it is always risky trying to determine congressional intent, it is even more perilous in the Bankruptcy Code, since there are virtually no legislative history to speak of and that which does exist tends to be unenlightening. The committee reports and comments that do exist on § 1322 and § 1325 do nothing more than reiterate the language of the two sections themselves"), and In re Ezell, 338 B.R. 330, 341 (Bankr.E.D.Tenn.

  6. In re Page

    658 B.R. 178 (Bankr. E.D. Wash. 2024)

    See, e.g., In re Simmons, 288 B.R. 737, 749 n.39 (Bankr. N.D. Tex. 2003) ("Sections 1222(b)(5) and 1322(b)(5) appear to parallel section 1124, which allows a chapter 11 debtor to cure and reinstate (and so leave unimpaired) a class of claims."); In re Brady, 86 B.R. 166, 170 (Bankr. D. Minn. 1988) ("Section 1322(b)(5) is the chapter 13 analogue to nonimpairment. It is very similar to the definition of nonimpairment found in § 1124(2) with the notable exception that the chapter 11 provision seems to require that any cure be done immediately on confirmation, while in chapter 13 the cure can be done within a reasonable time.").

  7. In re Davis

    411 B.R. 225 (Bankr. D. Md. 2008)   Cited 6 times
    Finding that the creditor's failure to object to the plan constitutes acceptance of its treatment under that plan

    1993); In re Szostek, 886 F.2d 1405 (3d Cir.1989); In re Brady, 86 B.R. 166, 169 (Bankr.D.Minn.1988) with Barnes v. Barnes (In re Barnes), 32 F.3d 405 (9th Cir.1994)). The third argument raised by Debtor is that the Judgment Creditors by their failure to object are deemed to have "accepted" the plan and thus Section 1325(a)(5)(A) is satisfied.

  8. In re Averhart

    372 B.R. 441 (Bankr. E.D. Wis. 2007)   Cited 6 times

    In In re Szostek, the court concluded this type of requirement is not mandatory for plan confirmation. See also In re Westenberg, 2007 WL 962932 (a decision rendered by Chief Bankruptcy Judge McGarity of the Eastern District of Wisconsin); In re Brady, 86 B.R. 166, 169 (Bankr. D. Minn. 1988); and In re Prussia Associates, 322 B.R. 572 (Bankr. E.D. Pa. 2005). However, some authority to the contrary does exist.

  9. Resolution Trust Corp. v. Adams

    142 B.R. 331 (Bankr. E.D. Mo. 1991)   Cited 2 times

    A number of courts have held that the only permissible modification of a home mortgage agreement is that expressly provided for in § 1322(b)(5). In re Terry, 780 F.2d 894, 896 (11th Cir. 1985); Appeal of Capps, 836 F.2d 773, 777 (3rd Cir. 1987); In re Brown, 91 B.R. 19, 22 (Bankr.E.D.Va. 1988); In re Brady, 86 B.R. 166, 167 (Bankr.D.Minn. 1988); In re Stamper, 84 B.R. 519, 522 (Bankr.N.D.Ill. 1988). Courts finding no interest allowed on arrearages have variously held that § 1322(b) creates an exception to 1325(a)(5)(B), In re Terry, 780 F.2d at 897, and that home mortgagors are not the intended beneficiaries under § 1325 cramdown provisions, Appeal of Capps, 836 F.2d at 776. To reach that conclusion these courts must conclude that a cure under § 1332(b)(5) is not a modification even though it negates the contract provisions calling for acceleration and stays foreclosure.

  10. In re Laguna

    114 B.R. 214 (B.A.P. 9th Cir. 1990)   Cited 13 times

    Congress did not intend that debtors be required to pay the higher of the market interest rate or the contract rate on claims secured solely by their principal residence. See In re Brady, 86 B.R. 166, 170 (Bankr.D.Minn. 1988). Such payment would be at odds with section 1322(b)(2)'s bar to modifying the rights of certain secured creditors.