In re Caldwell

25 Citing cases

  1. In re Oblinger

    288 B.R. 781 (Bankr. N.D. Ohio 2003)   Cited 10 times
    Describing the split and citing cases

    " Compare In re Widdicombe, 269 B.R. 803, 806-07 (Bankr.W.D.Ark. 2001) (characterizing the position that the right to convert is absolute as the majority view) with In re Ponzini, 277 B.R. 399, 403 n. 3 (Bankr.E.D.Ark. 2002) (asserting that it is no longer clear what line of authority represents the majority view). For example, the Fifth Circuit held that "a debtor's right to convert under section 706(a) is, as indicated by the statute and its legislative history, an absolute one." Martin v. Martin (In re Martin), 880 F.2d 857, 859 (5th Cir. 1989); see also In re Jennings, 31 B.R. 378, 380 (Bankr.S.D.Ohio 1983); In re Caldwell, 67 B.R. 296, 300 (Bankr.E.D.Tenn. 1986). But even the Martin court recognized in dicta that other courts have denied motions to convert where the request arises under "extreme circumstances."

  2. In re Markovich

    207 B.R. 909 (B.A.P. 9th Cir. 1997)   Cited 37 times
    Holding and collecting numerous cases to this effect

    1990); In re Tuan Tan Dinh, 90 B.R. 743, 745 (Bankr.E.D.Pa. 1988). In Jones, the bankruptcy court referred to an earlier decision, In re Caldwell, 67 B.R. 296, 300 (Bankr. E.D.Tenn. 1986), where the court held that a debtor could convert his chapter 7 case to a case under chapter 13 and revoke his discharge when the discharge was meaningless. Jones, 111 B.R. at 676.

  3. In re Thornton

    203 B.R. 648 (Bankr. S.D. Ohio 1996)   Cited 23 times
    Stating that request to convert case is core

    Debtors interpret this section to mean that a debtor has an "absolute right" to convert from a Chapter 7 to a Chapter 13 at any time. Debtors cite to several cases which have held in favor of this assertion. See, e.g., Street v. Lawson ( In re Street), 55 B.R. 763, 766 (Bankr. 9th Cir. 1985); In re Caldwell, 67 B.R. 296, 300 (Bankr.E.D.Tenn. 1986), rev'd, 895 F.2d 1123 (6th Cir. 1990); In re Jennings, 31 B.R. 378 (Bankr.S.D.Ohio 1983) (Newsome, J.). An examination of the facts of these cases shows that they do not stand for such an unequivocal right, but rather the limited right to convert in the absence of bad faith. In Street, the appellate panel dealt with an motion to convert to Chapter 13 after the bankruptcy court had entered a judgment of nondischargeability in Chapter 7. In re Street, 55 B.R. at 763-64.

  4. In re Jones

    111 B.R. 674 (Bankr. E.D. Tenn. 1990)   Cited 38 times
    Holding that discharge may be vacated on debtor's motion under F.R.Bankr.P. 9024 in appropriate circumstances

    This court, speaking through Judge Clive W. Bare, has previously held that a debtor was entitled to convert his Chapter 7 case to a case under Chapter 13 and to revocation of his Chapter 7 discharge, when the discharge was meaningless. In re Caldwell, 67 B.R. 296 (Bankr.E.D.Tenn. 1986). In addition to the discharge and conversion issues addressed in Caldwell, the court also confirmed the debtor's Chapter 13 plan.

  5. Matter of Martin

    880 F.2d 857 (5th Cir. 1989)   Cited 62 times
    Concluding that a bankruptcy court has no discretion to deny a debtor his or her one-time right to convert to Chapter 13, but recognizing that other courts have denied such motions in "extreme circumstances"

    See In re Kleber, 81 B.R. 726, 727 (Bankr.N.D.Ga. 1987) (court has no discretion to determine whether debtor should be allowed to convert from Chapter 7 to Chapter 11 for the first time even if the conversion is sought to block efforts of the Chapter 7 trustee to bring adversary proceedings against the debtor); In re Easley, 72 B.R. 948, 951 (Bankr.M.D.Tenn. 1987) (Chapter 7 debtor must be allowed to convert if she has not previously converted from another Chapter even after judgment of nondischargeability in a Chapter 7 case); In re Caldwell, 67 B.R. 296, 300-01 (Bankr.E.D.Tenn. 1986) (same); In re Street, 55 B.R. 763, 765 (Bankr. 9th Cir. 1985) (same); In re Jennings, 31 B.R. 378, 380 (Bankr.S.D.Ohio 1983) (same). There are, however, some cases which block the conversion, but only in extreme circumstances, see In re Calder, 93 B.R. 739, 740 (Bankr.D.Utah 1988) (debtor was a practicing bankruptcy attorney who had filed three Chapter 13 petitions in past seven years, two of which were dismissed on ground of bad faith filing; debtor had also made "minimal effort" during those seven years to repay creditors), or bad faith and an unfeasible plan, see In re Straugh, 41 B.R. 757, 759 (Bankr.W.D.Penn. 1984) (debtor's plan not feasible even using his best estimate of future income; plan also bad faith because it failed to provide for payment of possibly preferential transfer).

  6. In re Caldwell

    851 F.2d 852 (6th Cir. 1988)   Cited 235 times
    Holding that when a district court functions in an appellate capacity, the district court is subject to the limitations imposed on appellate courts, including a bar on engaging in fact finding

    The bankruptcy court, after making findings of fact and conclusions of law, determined that all of the requirements for confirmation were satisfied and confirmed the plan. 67 B.R. 296. Confirmation of plan

  7. Pequeno v. Schmidt

    307 B.R. 568 (S.D. Tex. 2004)   Cited 15 times
    Holding debtor had absolute right to convert under § 706

    See, e.g., In re Caldwell, 67 B.R. 296 (Bankr.E.D.Tenn. 1986);Jones, supra.Hauswirth, supra.

  8. Government Employees Corp. v. McKinney

    92 B.R. 317 (N.D. Ill. 1988)   Cited 2 times

    Therefore, GEC argues, its claim cannot be discharged under the terms of Ms. McKinney's Plan. The bankruptcy laws generally authorize the discharge of debts under Chapter 13 which are not dischargeable under Chapter 7. In re Caldwell, 67 B.R. 296, 303 (Bkrtcy.E.D.Tenn. 1986); Street v. Lawson, 55 B.R. 763, 765 (9th Cir.B.A.P. 1985); In re Sturgeon, 51 B.R. 82, 83 (Bkrtcy.S.D.Ind. 1985). Alimony, maintenance and child support payments, however, are exempted from this general rule.

  9. In re Miller

    BAP No. UT-02-082, Bankr. No. 02T-23053 (B.A.P. 10th Cir. Dec. 30, 2003)

    On appeal Appellant argues that the bankruptcy court erred in denying his Motion to Convert, pointing to a contrasting line of cases that hold that the plain language of § 706 grants all debtors a one-time absolute right to convert that is restricted only by the requirements specifically delineated in that statute. See, e.g., Rigales, 290 B.R. at 409-10; In re Widdicombe, 269 B.R. 803 (Bankr. W.D. Ark. 2001); In re Verdi, 241 B.R. 851 (Bankr. E.D. Pa. 1999); In re Kleber, 81 B.R. 726 (Bankr. N.D. Ga. 1987); In re Caldwell, 67 B.R. 296 (Bankr. E.D. Tenn. 1986). These cases rely not only on the plain language of the statute, but the legislative history of § 706 and the policy behind its enactment.

  10. In re Miller

    303 B.R. 471 (B.A.P. 10th Cir. 2003)   Cited 26 times
    Permitting conversion despite bankruptcy court's findings that debtor had engaged in egregious behavior and abuses of the bankruptcy court and Code to "avoid paying creditors"

    See, e.g., Rigales, 290 B.R. at 409-10; In re Widdicombe, 269 B.R. 803 (Bankr.W.D.Ark. 2001); In re Verdi, 241 B.R. 851 (Bankr. E.D.Pa. 1999); In re Kleber, 81 B.R. 726 (Bankr.N.D.Ga. 1987); In re Caldwel1 67 B.R. 296 (Bankr.E.D.Tenn. 1986). These cases rely not only on the plain language of the statute, but the legislative history of § 706 and the policy behind its enactment.